Marriage case plaintiffs ask for lifting of stay of Piazza decision | Arkansas Blog

Tuesday, February 17, 2015

Marriage case plaintiffs ask for lifting of stay of Piazza decision

Posted By on Tue, Feb 17, 2015 at 5:23 PM

Plaintiffs in the same-sex marriage lawsuit asked the Arkansas Supreme Court today to lift its stay of Judge Chris Piazza's ruling invalidating the state ban on same-sex marriage and denial of marital benefits to people married in other states.

The case was decided last May and the stay was issued May 16, 2014. Despite completion of the case with oral arguments in November, the Supreme Court has not ruled. In response to motion from Attorney General Leslie Rutledge, it further delayed a decision by asking for arguments on which judges should decide the case, given a change in two justices at the first of the year.

The filing by Cheryl Maples, attorney for the plaintiffs, said the Supreme Court should consider the many rulings around the country invalidating such bans and immediately vacate its stay, as has happened in several other states. Most recently, the U.S. Supreme Court declined a request for a stay in Alabama pending a final appellate court decision. Justice Clarence Thomas wrote at the time that refusal to grant a stay might be viewed as tipping the court's hand on its final decision on same-sex marriage, invalidated in all but one circuit court that has considered the issue.

Maples argue that the state hasn't met the test for a stay — including irreparable harm or a likelihood of prevailing on the merits. "Plaintiffs and their children suffer serious irreparable harm each and every day that this stay remains in effect. In addition to suffering financial losses and demeaning treatment, the security provided by marriage in the event of death, illness, incapacity, etc. is denied to Plaintiffs in, as the lower Court has found, violation of their constitutional rights. The harm to Plaintiffs is real, immediate and should not continue."

The only harm to the state is an alleged administrative burden, though it would only allow adding to the number of people getting marriage licenses are being granted marital benefits.

The motion quoted Piazza's own ruling denying a stay: "This Court, however, cannot ingood conscience grant such a request. Constitutional violations are routinely recognized as triggering irreparable harm unless they are promptly remedied."

Wrote Maples:

A continuation of the stay only perpetuates the ongoing, and irreparable dignitary, legal, financial and practical harms suffered by the Plaintiffs-Appellees that cannot be redressed by money damages or subsequent court order including, but certainly not limited to:

a. The right to make health decisions for the other spouse;
b. The right to support;
c. The right to equal distribution of property obtained during marriage;
d. The right to claim an elective share of a spouses estate;
e. The right to share in employment benefits;
f. All rights of both parents regarding children bom during the relationship; and
g. The right to claim a deceased spouses body

This Court should not allow any unnecessary continuation of the deprivation of
of Plaintiffs' constitutional rights.

Maples also filed a motion further responding to the attorney general's call for new oral arguments and an assertion that new Justices Rhonda Wood and Robin Wynne should vote on the case — not Special Justice Robert McCorkindale, appointed last year, and retired Justice Donald Corbin, who heard the oral arguments and participated at the conference in which a vote was taken and the majority opinion assigned to one of the justices. The plaintiffs had said earlier that another round of arguments wasn't necessary and the original panel should decide the case.

Maples' motion today said she apologized for appearing to "oppose" Wynne and Wood participating. Rather, she said she was concerned about further delay  would be unnecessary if the justices who heard the case could "finalize" their work. She said she was sure Wood and Wynne would be fair. Jack Wagoner, who joined Maples on this case, did not sign the new motion.

Her motion said the situation was novel — with a new justice taking office for a seat him which a judge's recusal led to the appointment of a special justice. The provision for appointment of special judges is intended to ensure continuity, she said, and McCorkindale's continued service would avoid disruption. She said existing practice holds that he should stay on the case. For reasons of expediency, she said the court should move forward with a decision by the justices to whom it was originally submitted.

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