Arkansas Supreme Court Dismisses Appeal of Gay Marriage Ruling, Denies Emergency Stay

Confusion reigns over the state of same sex marriage in Arkansas after the Arkansas Supreme Court dismissed an appeal from the state court ruling striking down that state's anti-gay marriage amendment.  The Supreme Court also denied the State's request for an emergency stay.  While both actions look promising to supporters of marriage equality, the rules in reality do not reveal what the ultimate outcome will be because the Court's actions were focused on legal technicalities - e.g., the lower court order was not yet "final" and therefore not yet subject to appeal - than on any substantive decision.  A piece in the Arkansas Times looks at the developments and why no real result has yet been achieved.  Here are excerpts:

The Arkansas Supreme Court has denied a request for an emergency stay of Judge Chris Piazza's order overturning the ban on same-sex marriage. The court also dismissed as premature an appeal of Piazza's ruling because it wasn't a final order.

Marriage equality remains the law of the land in Arkansas, but the court injected a wrinkle that will give counties cover to continue to refuse marriage licenses to same-sex couples. And that wrinkle has prompted Pulaski Clerk Larry Crane to say that, for the time being, his office likely will cease issuing licenses to same-sex couples.

The court noted that Piazza's ruling didn't mention a statute that prohibits clerks from issuing marriage licenses to same sex couples. It remains in effect. Action will now shift to Piazza's court to pursue final orders, injunctive relief and a cleanup on the omitted statute.

Said Jack Wagoner, attorney for the plaintffs:

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?

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.

In addressing Attorney General Dustin McDaniel's argument that the court should exercise its superintending authority and issue a stay because of confusion on the part of clerks on whether they should issue same-sex licenses, the court said:

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 ofthe 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

At a minimum, this reads as clear protection for the 73 counties that have chosen not to issue licenses despite Piazza's order. Pulaski and Washington have continued to do so.

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.

The bottom line?  Stay tuned for more developments and more attempts for a stay and an appeal.