Updated: 9:30 p.m. CDT.
LITTLE ROCK, Ark. — The Arkansas Supreme Court refused Wednesday to put on hold a ruling that overturned the state’s constitutional ban on gay marriage, but the short-lived ability for same-sex couples to wed in the state still came to a halt amid confusion about what comes next.
The justices in their decision offered no direction on that point to the state’s county clerks, some of whom had pointed to another ban against gay marriage that is written into an aspect of state law and questioned if it remained in effect.
A look at Arkansas marriage laws:
In declining to put on hold a judge’s ruling that overturned Arkansas’ constitutional gay marriage ban, the state Supreme Court on Wednesday created some confusion because it offered no direction to county clerks who had pointed to another part of state law that also bans gay marriage. The court simply noted that a lower court judge had not addressed it in his ruling last week.
Pulaski County Circuit Judge Chris Piazza had specifically struck down Arkansas’ constitutional amendment 83 of 2004 as well as Act 144 of 1997, which says that marriage is “only between a man and a woman.” However, his ruling did not address another section of the law that directs how county clerks issue marriage licenses and specifies that they’re not to be issued to same-sex couples. Below is the text of the amendment and the state laws:
Constitutional Amendment 83 of 2004
1. Marriage: Marriage consists only of the union of one man and one woman.
2. Marital status: Legal status for unmarried persons which is identical or substantially similar to marital status shall not be valid or recognized in Arkansas, except that the legislature may recognize a common law marriage from another state between a man and a woman.
3. Capacity, rights, obligations, privileges, and immunities: The legislature has the power to determine the capacity of persons to marry, subject to this amendment, and the legal rights, obligations, privileges, and immunities of marriage.
Act 144 of 1997 (codified at Arkansas Code annotated 9-11-109)
Validity of same-sex marriages: Marriage shall be only between a man and a woman. A marriage between persons of the same sex is void.
Arkansas Code annotated 9-11-208.
License not issued to persons of the same sex:
(a) (1) (A) It is the public policy of the State of Arkansas to recognize the marital union only of man and woman.
(B) A license shall not be issued to a person to marry another person of the same sex, and no same-sex marriage shall be recognized as entitled to the benefits of marriage.
(2) Marriages between persons of the same sex are prohibited in this state. Any marriage entered into by a person of the same sex, when a marriage license is issued by another state or by a foreign jurisdiction, shall be void in Arkansas, and any contractual or other rights granted by virtue of that license, including its termination, shall be unenforceable in the Arkansas courts.
(3) However, nothing in this section shall prevent an employer from extending benefits to a person who is a domestic partner of an employee.
(b) A license shall not be issued to a person to marry unless and until the female shall attain the age of sixteen (16) years and the male the age of seventeen (17) years and then only by written consent y a parent or guardian until the male shall have attained the age of eighteen (18) years and the female the age of eighteen (18) years.
Arkansas Code annotated 9-11-204.
Issuance of license unlawfully — Penalty: If any county clerk in this state shall issue any license contrary to the provisions of this act, or to any persons who are declared by law as not entitled to the license, he or she shall be deemed guilty of a misdemeanor and upon conviction shall be fined in any sum not less than one hundred dollars ($100) nor more than five hundred dollars ($500).
“I think it actually makes it a little more muddy,” Chris Villines, the executive director of the Association of Arkansas Counties, said Wednesday evening after reviewing the Supreme Court’s decision.
Last Friday, Pulaski County Circuit Judge Chris Piazza threw out a 10-year-old ban that voters placed in the state constitution and a separate state law barring same-sex marriages. But he didn’t rule on a third law that regulates the conduct of county clerks, which threatens fines if they issue marriage licenses to same-sex couples.
Clerks in five counties responded to Piazza’s decision by issuing marriage licenses to gay couples, and more than 450 gay couples in Arkansas have since received permission to marry.
Two counties — Pulaski and Washington — continued to issue licenses on Wednesday, but they stopped after the Supreme Court’s ruling. Couples that already have licenses can still get married.
“County clerks have been uncertain about their responsibilities and couples unable to know definitively whether their marriage will remain valid,” said Aaron Sadler, a spokesman for Attorney General Dustin McDaniel. “A stay issued by either the Supreme Court or Judge Piazza would have brought some certainty. Unfortunately, today’s decision did not do that.”
The state’s other 70 counties had not issued licenses to gay couples, with many saying the Supreme Court needed to weigh in.
In their ruling Wednesday, the justices simply noted that, indeed, the rules governing clerks remains on the books because Piazza didn’t specifically void it. Lawyers for gay couples said Piazza could simply incorporate broader language when he files a final order.
“I would argue that is implicit in his ruling, but we’re going to have to get him to address that,” lawyer Jack Wagoner said.
Jason Owens, who represented four counties named as defendants in the gay couples’ lawsuit, said the counties were correct to wait for further guidance.
“I think it certainly validates that decision to not issue the licenses because there is still a statute in effect that prohibits that,” Owens said.
Action will now shift back to Piazza’s court to pursue final orders, injunctive relief and a cleanup on the omitted statute, reports the Arkansas Times.
Jack Wagoner, attorney for the plaintiffs, said: “We’ll fix that tomorrow and be back here again…. How can you find something unconstitutional but not affect a statute that would require the clerks to do something unconstitutional?”
Pulaski and Washington counties had issued licenses through Wednesday afternoon. Pulaski County Clerk Larry Crane initially said he would continue to do so Thursday, but changed his mind after talking to the county’s lawyer. Washington County clerk Becky Lewallen stopped distribution but intended to talk to other clerks about a way forward.
“It’s kind of unfair, the ruling, and we are going to suspend it until we get some clarification,” Lewallen said.
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Arkansas voters approved a gay marriage ban by a 3-to-1 margin in 2004, but Piazza’s ruling cleared the way for the first same-sex marriages in the Bible Belt.
“This is an unconstitutional attempt to narrow the definition of equality,” Piazza wrote. “The exclusion of a minority for no rational reason is a dangerous precedent.”
The attorney general’s office said it would appeal the judge’s decision at the appropriate time.
Developing story, check back for updates.
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