LITTLE ROCK — The plaintiffs in a lawsuit challenging the state’s ban on same-sex marriage asked the state Supreme Court on Tuesday not to stay a circuit judge’s ruling that struck down the ban.
Pulaski County Circuit Judge Chris Piazza ruled Friday that Arkansas’ constitutional amendment defining marriage as between a man and a woman violates both the state and federal constitutions. Following the decision, a handful of counties began issuing marriage licenses to same-sex couples, making Arkansas the first state in the South to grant marriage rights to gays.
Piazza issued the ruling in a lawsuit brought by several same-sex couples. On Monday, the state attorney general’s office and a lawyer representing four of the six county clerks named as defendants in the suit filed motions asking the state Supreme Court to stay the ruling.
Jack Wagoner, attorney for the plaintiffs, filed responses to those motions Tuesday in which he argued that the defendants have not shown that they will be irreparably harmed if the ruling is allowed to remain in effect.
The plaintiffs, on the other hand, will suffer irreparable harm if the judge’s ruling is stayed because they and their children will once again be deprived of the security, stability and legal benefits that marriage provides and will be exposed to continuing stigma and discrimination, Wagoner argued in the filings.
Arguments by the defendants that a stay is needed to avoid confusion have “no merit,” Wagoner wrote.
“The May 9 order expressly declared Amendment 83 to be invalid and therefore plainly requires that (county) clerks issue marriage licenses to qualified same-sex couples on the same basis as they issue marriage licenses to qualified different-sex couples. There is no basis for confusion,” he argued.
Addressing an argument raised by the county clerks that Piazza’s ruling did not address Arkansas Code Annotated 9-11-208, which prohibits issuing marriage licenses to same-sex couples, Wagoner wrote that “the proper remedy to resolve any uncertainty as to the intended scope of the May 9 order is to request that the Circuit Court clarify and correct the order, not to seek a stay.”
Wagoner also filed a motion Tuesday for dismissal of the defendants’ appeal. The court has given the defendants until 10:30 a.m. Wednesday to respond.
Wagoner argued in the motion that an appeal to the Supreme Court is premature because Piazza has not ruled on a request to stay his order; has not ruled on the plaintiffs’ request for an injunction barring enforcement of the same-sex marriage ban; and in an apparent oversight has not addressed Arkansas Code Annotated 9-11-208.
Meanwhile, Gov. Mike Beebe said Tuesday it will be up to the state Supreme Court to clarify whether county clerks are obligated to issue same-sex marriage licenses.
“There’s a lot of lack of uniformity right now obviously, because some counties are issuing and some counties are not issuing,” he told reporters. “I think under Arkansas law that circuit judge’s decision certainly applies to the parties and probably to the jurisdiction but may not apply to the rest.”
Of the six county clerks named as defendants in the lawsuit, the clerks of Conway, Lonoke and White counties have chosen not to issue marriage licenses to same-sex couples, while the clerks of Pulaski and Washington counties have chosen to issue them. The clerk’s office in Saline County issued six licenses to same-sex couples before halting the practice on the advice of lawyers.
By 4:30 p.m. Tuesday, the Pulaski County clerk’s office had issued 243 marriage licenses to same-sex couples over two days and the Washington County clerk’s office had issued 122.
The clerk’s offices in at least two counties not named in the suit began issuing marriage licenses to same-sex couples after Piazza’s ruling but then halted the practice. Carroll County issued 28 and Marion County issued one before lawyers advised that they stop.
Beebe, a former state attorney general, said he was not offering an opinion on whether clerks named in the lawsuit are obligated to issue marriage licenses to same-sex couples.
“I think the Supreme Court will clear that up very, very quickly,” he said. “I quit practicing law about eight years ago.”
Beebe has said he opposes same-sex marriage.
Some state legislators have said they may seek to impeach Piazza. Beebe said Tuesday, “You don’t do that because you don’t agree with a decision.”
Last June, the U.S. Supreme Court struck down a provision in the federal Defense of Marriage Act that defined marriage as between a man and a woman. Since then, federal judges have struck down same-sex marriage bans in Utah, Oklahoma, Virginia, Texas and Michigan. Those rulings have been stayed pending appeals.