The deadline is 2 p.m. for arguments on whether the Arkansas Supreme Court will stay Judge Chris Piazza’s marriage equality ruling. I think the court’s decision to move up the deadline from Monday to 2 p.m. on five hours’ notice indicates their minds are made up to stay the ruling. But plaintiffs in the lawsuit are taking their licks at keeping the order in effect.

The state must show both a likelihood of success and irreparable harm to win a stay, attorneys Jack Wagoner and Cheryl Maples argue. The plaintiffs naturally think the facts favor them on prevailing. But what harm does the state suffer in continuing to allow people to marry? The pleading says the New Jersey Supreme Court rejected a stay in a similar case because the state could make no showing of tangible harm and that the only damage was to plaintiffs. They continued to be denied equal protection under the law.


At a minimum, the court should do a substantive evaluation before denying a stay, the attorneys argue. It quotes Judge Piazza, who denied a stay because he said it would further damage plaintiffs. The attorneys also dismiss the state’s “confusion” argument. Piazza was clear. Counties should issue licenses. Any harm from an ultimate reversal would not be to defendants. Speculation about potential future confusion is not a tangible harm, the New Jersey court held.

The confusion lies more with the plaintiffs, they say. With a stay, plaintiffs will “again be forced to navigate a complex, bewildering and ever-shifting terrain of uncertainty as to whether they will be respected as a legally married couple by particular federal agencies, private employers, businesses and particular state and local governmental actors. For such couples, the notion that maintaining this untenable and chaotic ‘status quo’ will somehow insulate them from uncertainty and confusion has no basis in reality.”


If the court order is stayed, the pleading notes, what happens concerning the University of Arkansas’s recent decision to cover same-sex spouses on benefit plans? Will they be deprived of this “critical protection,” the pleading wonders.

Every court case since the U.S. Supreme Court Windsor ruling has been decided on behalf of plaintiffs, the brief notes. The public has no interest in enforcing unconstitutional laws, it said.


Jason Rapert not included, of course.