At 4:30 p.m. today, with many of the justices at an out-of-state conference, the Arkansas Supreme Court issued a stay of Judge Chris Piazza’s ruling last Friday that Arkansas law and constitutional bans on same-sex marriage violated the U.S. Constitution.
It was a one-sentence order without any elaboration granting motions by the state and four counties for a stay.
This will again end the issuance of marriage licenses to same-sex couples in Arkansas. It’s been an on-and-off process in a handful of counties since Saturday, with most of some 500 licenses issued in Pulaski County. Video above from Fox 16’s David Goins shows one of the last ceremonies at the Pulaski County Courthouse.
Said a spokesman for Attorney General Dustin McDaniel:
As this office stated in its pleadings, a stay prevents confusion and uncertainty until the Arkansas Supreme Court decides this matter on appeal. The Court today made the right decision to issue a stay, as other courts across the country have done in similar circumstances.
Jack Wagoner, attorney for the plaintiffs, said he thought a strong case had been made to keep the ruling in place, but expected a stay. He said he didn’t take it as an indication of the court’s leaning on a final decision. He added that he’ll be moving ahead in a couple of weeks with pleadings in a federal lawsuit also challenging the state bans.
Piazza’s decision will now go through the appeal process. A record of the lower court case must be prepared. A briefing schedule must be set and probably oral arguments. The court takes a two-month recess each summer. Even with an expedited schedule, it’s uncertain if the case can be decided this calendar year, when two of the current justices — Cliff Hoofman and Donald Corbin — will be replaced by Rhonda Wood and the winner of a race between Judge Robin Wynne and Tim Cullen. Typical there’s about 2.5 months for briefing after a record and transcript is completed. Part of this record has already been completed and it’s not an extensive record. It conceivably could be completed by fall.
One question is whether the decision can be reached before the November election, when it could become prime political fodder. The Republican Party has long made opposition to same-sex marriage one of its bedrock campaign issues. National Democrats tend to favor marriage equality, but most leading Democratic candidates in Arkansas — including Gov. Mike Beebe and candidate Mike Ross — have said they favor the idea of marriage being between a man and woman. Sen. Mark Pryor and leading congressional candidates have said the same.
Both the plaintiffs in the marriage case — married couples and couples hoping to be married — and the state had argued that the likelihood of their prevailing on appeal was one key factor the court should consider in issuing a stay. Both argued irreparable harm if their motion was denied, though the state’s showing on this point was slim — the possibility of different handling of licensing in counties and the possibility that, someday, licenses issued might be held to be invalid. Plaintiffs argued that these were not evidence of tangible harm, but continued denial of constitutional rights was tangible harm. Six counties were named defendants (Pulaski, Washington, Lonoke, White, Saline and Conway), along with state agencies that apply laws in ways discriminatory to married same-sex couples. Other counties not named in the case took the view that Piazza’s ruling didn’t apply to them absent a Supreme Court ruling. Marion County issued one license on Monday, then stopped.
The Arkansas Supreme Court years ago struck down criminal sodomy laws before the U.S. Supreme Court did, relying on the individual rights section of the state Constitution. It also invalidated a 2008 law aimed at preventing gay couples from adopting or being foster parents. More recently, it opened the door to child custody in a home with an unmarried same-sex couple. But court membership has changed since the major rulings and political pressure remains high in Arkansas on the side of discrimination against gay people, in both marriage and employment. Polls show a majority in Arkansas now favor civil unions and also show a decline in opposition to same-sex marriage, which was approved as a constitutional amendment in 2004 by 75 percent of voters. In 2004, it was opposed only in some liberal regions in Pulaski and Washington counties (not coincidentally where most marriage licenses have been issued this week.)
Marriage equality plaintiffs expected the stay. For now, they’ll go back to the law books and Arkansas will return to the marital status quo. Indelible, though, are the photographs, video and written accounts of hundreds of happy people, tasting equality for themselves and their families for the first time, if only briefly.
Lawyers have said previously that a stay has no immediate impact on licenses issued during the last week. It does not invalidate it, it just suspends its further imposition.
I asked Carl Tobias, Williams Professor of Law at the University of Richmond, his thoughts on reading future action into today’s ruling. He said “it seems to be a very preliminary procedural ruling that does not necessarily foreshadow the merits.”