Earlier today I wrote a a diary celebrating the fact that the Governor of Idaho's request to stay the recent marriage equality ruling had been denied. On top of that, the National Organization for Marriage was also laughed off the stage with their request to appeal Oregon's recent decision to scrap their ban. All-in-all a rather good day for marriage equality
I would really be jumping out of my chair by the news out of Arkansas that their Supreme Court denied a request by their Attorney General to stay the recent ruling that their marriage ban was unconstitutional. While that may sound like fantastic news, marriages have been ground to a halt in the state by this same decision.
When Judge Chris Piazza issued his ruling striking down the ban he failed to address a separate statute that prohibits clerks from issuing marriage licenses to same sex couples. The High Court noted this in their decision today and the county clerks who have been issuing licenses have agreed to stop.
We tum again to the circuit court's order. Here, the circuit court did not issue a ruling with regard to Ark. Code Ann. $ 9-11- 208(b) (Repl. 2009), "License not issued to persons of the same sex." Therefore, the circuit court's order has no effect on Ark. Code Ann. S 9-11-208(b) and its prohibition against circuit and counry clerks issuing same-sex marriage licenses. Accordingly, we deny the State's petition for an emergency stay of the circuit court's May 9,2074 order.
Two Justices also noted that Piazza's ruling had not been finalized and would have been reason enough to dismiss the appeal.
Justices Donald Corbin and Paul Danielson issued a separate concurrence that said they simply would have dismissed the appeal for lack of a final order and rejected the emergency stay request because the case is still before the trial court.
The attorney for the plaintiffs, Jack Wagoner
responded quickly.
We'll fix that tomorrow and be back here again.... How can an order find something unconstitutional but not affect a statute that would require the clerks to do something unconstitutional?
Pulaski Clerk Larry Crane, one of the two county clerks who has given out over 400 licenses since the ruling, agreed that Piazza will act quickly.
As I have maintained all along I'm going to follow the law. The Supreme Court has now fairly clearly told me that, as least as of right now, I need to be following that statute, which means that in all likelihood at 8 a.m. in the morning we will not be issuing licenses. Having said that, I reserve the right for things to happen between now and then.
I would anticipate that plaintiffs counsel will very quickly file some sort of pleading in the case before Judge Piazza to ask for specific relief from that statue.
But I believe he was very unequivocal in his opinion that the Constitutional amendment and the statute he addressed violated both the Arkansas and U.S. Constitutions in denial of due process and equal protection. I'd anticipate he'll come right back [with an order on the outstanding statute] and we'll be right back where we were a few days ago.
So yes, right back where we were. There are many questions unanswered tonight. The
Arkansas Blog is as confused as I am as to where this might all be leading.
It's not too early for some speculation. Remember that the plaintiffs asked the Supreme Court to deny a stay on the usual familiar grounds — that the state isn't likely to prevail on the merits and that irreparable harm would be done to plaintiffs. If the court was inclined to overturn Piazza, wouldn't it have been better to stay the order now and prevent a possible succession of hundreds of more couples to Larry Crane's office for marriage licenses? That's one school of thought. Another school of thought is that the Supreme Court membership is significantly different from the panel that unanimously struck down a statute aimed at discriminating against gay parents. A split on the court is thought likely, particularly given the higher political aspirations of some members in a state where public sentiment, though improving, remains set against same-sex marriage.
The optics of happy people tasting equality — with friends, kids, relative and admirers in tow — is powerful in the courts — real and of public opinion.
Things are getting very interesting in Arkansas.