The top court in Arkansas has ruled that due to multiple laws defining marriage as not recognised between same-sex couples, the previous ruling is “incomplete,” and a ban on same-sex marriage is still in effect. Well. Halfsies. Maybe? Stop bothering us!
Last week Judge Chris Piazza declared the state’s ban on same-sex marriage to be unconstitutional. He refused to put a stay/injunction on his ruling, expecting near immediate compliance with his decision. Piazza cited Loving v. Virgina in his last paragraph, finishing it with a resounding, “it is so ORDERED.”
Supreme Court of Arkansas’ response here is complicated, but let’s look at a portion of the text. Disclaimer, I am not a lawyer, although I did my master’s work in Government, and that included 24 hours of law courses, including three different courses dealing with American constitutional law. I could be wrong, but I will attempt to explain what’s going on here:
Second, the State asserts that even if we dismiss the appeal, we should use our superintending authority to grant a stay because circuit and county clerks are confused as to whether they may issue same-sex marriage licenses. ‘We turn 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 county clerks issuing same-sex marriage licenses.
Accordingly, we deny the State’s petition for an emergency stay of the circuit court’s May 9, 2014 order. Motion to dismiss appeal granted without prejudice; motion for emergency stay denied.
Okay, so, the parties that appealed and sought a stay on Piazza’s ruling? Well, those folks appealed based on the idea that a second law prohibited counties from issuing marriage licenses to same-sex couples and that the decision by Piazza was rendered moot because he would have had to rule both laws unconstitutional and direct counties to ignore both laws.
SCOAR agreed with the State that there isn’t any effect on that prohibition as written into law, but then turned around and said in the same breath, “this cuts both ways.” The continued legality of the second law has absolutely no bearing on Piazza’s finding the first law unconstitutional. And since that was the argument used to file the appeal and request a stay, SCOAR basically just told the State:
So why is this ruling bullshit? SCOAR essentially just sent it back to Piazza, declaring his ruling “incomplete.” Why? Because it apparently does agree with the assertion of the State that both laws should be addressed, it just disagreed with the State that one law necessarily affects the other.
After Piazza’s ruling, only five of Arkansas’ 75 counties were issuing marriage licenses to same-sex couples. The counties which objected based their objection on the second law cited in the appeal. And it’s a pretty good guess that three of the counties which initially felt compelled to issue same-sex marriage licenses only did so because they felt that the ruling covered both of the laws. Now, only two counties are still issuing licenses, Pulaski and Washington.
And that’s apparently just fine by SCOAR, whose short 1.5 page judgement essentially reads like, “Y’all just take care of this yourself at the local level and please for the love of God stop bothering us with your whining.”
But there may be a silver lining—in my view (others may disagree), SCOAR’s refusal to declare Piazza wrong perhaps means his legal logic is sound. If so, then once that same logic is applied to the second law in a “complete” ruling (an opinion much likelier to be even stronger than it is now), SCOAR will end up supporting the conclusion reached.
Yet for now, it seems SCOAR is content to sit on the sidelines sorta not giving a crap. But three hip hip hoorays for Washington and Pulaski counties! They must be loving the influx of all of those marriage license fees. Let’s see if economic pressure wins over a few more county clerks in the Razorback state.
Image via AP.
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