Box Turtle Bulletin

Arkansas Supreme Court Halts Marriages

In a simple one-sentence order, the Arkansas State Supreme Court has brought same-sex marriages in the state to a halt:

State Defendants-Appelants’ petition for emergency stay and separate White, Washington, Lonoke and Conway County appellants’ expedited motion for stay are granted.

The Arkansas Time blog describes what lies ahead:

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.

In other words, this may kick things down the road to 2015 or so.

Arkansas marriages resume

Yesterday the Arkansas Supreme Court chose not to stay the decision by Judge Chris Piazza in which he found that the state constitutional amendment banning same-sex marriage was in contradiction with other provisions of the state constitution. However, then noted that his temporary order only addressed the amendment and not the legislator-passed state law.

Today Judge Piazza clarified that when he found anti-gay marriage bans unconstitutional, he really did mean all of them. (AP)

A day after the state Supreme Court effectively halted gay marriages in the state, Pulaski County Circuit Judge Chris Piazza expanded his ruling striking down a constitutional ban to also include the prohibition on clerks issuing same-sex marriage licenses. Justices had ruled Wednesday that Piazza’s decision on the gay marriage ban did not change that license law.

Piazza also rejected a request to suspend his ruling, saying there’s no evidence the state would be harmed by allowing gay marriages to continue.

So marriages in certain counties in Arkansas will resume.

Of course, now that he has issued his final ruling, the state Supremes may decide to place a stay on the ruling until they consider the appeal. Frankly, I’ll be surprised if they don’t; but should they choose not to, it will basically mean that the marriage question is over in that state.

Arkansas Supremes Deny Stay, Dismiss Marriage Appeal for Now

But it looks like same-sex marriages in Arkansas will come to an end anyway, at least temporarily. From the Arkansas Times blog:

The Arkansas Supreme Court has denied an 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?

Right now, this is throwing everything into chaos. The Carroll County (Eureka Springs) Clerk, which issued fifteen same-sex marriage licenses last Saturday, had already stopped issuing licenses by Monday after the local prosecutor issued a statement saying, “there was a law left on the books prohibiting a county clerk from issuing a marriage license to persons of the same gender. This  law was not addressed by Judge Piazza, and because of this, we advised the county clerk to stop  selling marriage licenses to persons of the same gender.” Marion and Saline Counties reversed course and stopped issuing licenses yesterday. Washington County  has indicated that it may also halt the issuing of licenses to same-sex couples.

Once the trial court fixes its order and enters a final judgment, I think you can expect that some counties will honor the ruling and some won’t, and the state will be back again before the Arkansas Supreme Court for another go at a stay and appeal.

You can read the Arkansas Supreme Court’s statement here (PDF: 237KB/7 pages).

Same-Sex Couples Marry In Little Rock

Last Saturday, the court house in Eureka Springs was the only place in Arkansas where same-sex couples could marry following Friday’s decision by an Arkansas judge declaring the state’s ban on same-sex marriage unconstitutional. This morning, marriages are taking place at the Pulaski County Court House in Little Rock:

The first Little Rock license went to Shelly Butler, 51, and Susan Barr, 48, of Dallas, who have been together since they met at Southern Arkansas University in 1985.

“When we heard the news in Arkansas, we had to jump in the car to get here,” Butler said shortly before receiving the license. “I’m just excited to marry my best friend of almost 30 years, finally.”

The second couple to receive a license was Thomas Baldwin, 37, and Devin Rudeseal, 24. The Bryant couple quickly married in the courthouse, and Rudeseal planned to take a final at the University of Arkansas at Little Rock later Monday morning.

The Arkansas Times adds:

Most counties in Arkansas will not be issuing licenses, relying on legal guidance that — if the counties were not defendants in the case (only six were) — and absent a direct order to cease discriminatory practices, the state ban remains in place in those counties. At least one county that IS a defendant — Lonoke — apparently has announced it will not issue licenses.

Washington County, one of the defendants, also began issuing licenses to same-sex couples. Justice of the Peace Eva Madison posted a Facebook photo after she signed the first such license in Washington County.

Washington County’s seat is in Fayetteville, in the northwest corner of the state and not far from Eureka Springs. It’s the state’s third largest city and home to the University of Arkansas. Conversely, Benton County (Bentonville), which is immediately to the north of Washington County and is home to Wal-Mart’s headquarters, has announced that it would not be issuing marriage licenses to same-sex couples. The same goes for Faulkner County (Conway), just north of Little Rock.

The First Same-Sex Marriages In the Former Confederacy

They took place in scenic Eureka Springs, Arkansas, which is both a gay-friendly enclave (it’s “the Gay Capital of the Ozarks“) and a popular wedding destination. From Freedom to Marry:

The first couple to receive a marriage license was Kristin Seaton and Jennifer Rambo (right, photo by Kendall Wright), who have been together for more than four years. The couple’s witness was Cheryl Maples (center), who filed the Wright v. Arkansas challenge last summer and has worked tirelessly to win marriage in the state.

The couple drove up to Eureka Springs from Little Rock when they learned the Pulaski County courthouse wouldn’t be open today. The AP has more:

Seaton and Rambo slept in their Ford Focus after arriving at 2 a.m. Saturday, waking up every 30 minutes to make sure they were at the head of the line. The moment they saw another couple pull up, Seaton and Rambo bolted to the courthouse.

“I don’t think I ran that fast,” Rambo said.

The Carroll County Courthouse was the only one scheduled to open today for regular hours, and it’s due to close at 1:00 p.m. CDT. Here’s the scene when it opened:

As for the other counties in Arkansas:

The executive director of the Association of Arkansas Counties says county clerks are scrambling to prepare for same-sex couples seeking marriage licenses after the state’s ban on gay marriages was overturned.

Chris Villines says he and his staff will spend Saturday talking with county clerks and attorneys about the ramifications of Pulaski County Circuit Court Judge Chris Piazza’s ruling Friday that the state’s ban on same-sex marriage is unconstitutional.

…Villines says he expects most clerks to be able to issue same-sex marriage licenses starting Monday.

That’s if the decision isn’t stayed before then.

Arkansas State Judge Strikes Down Marriage Ban

Pulaski County Circuit Court Judge Christopher Piazza has ruled that Arkansas’ laws and constitutional amendment banning marriage for same-sex couples violates the U.S. Constitution. In reaching his conclusion, Judge Piazza found that “same-sex couples fulfill all four factors to be considered a suspect or quasi-suspect classification,” but ultimately he decided it didn’t matter:

Regardless of the level of review required, Arkansas’s marriage laws discriminate against same-sex couples in violation of the Equal Protection Clause because they do not advance any conceivable legitimate state interest necessary to support even a rational basis review. Under this standard, the laws must proscribe conduct in a manner that is rationally related to the achievement of a legitimate governmental purpose. See Vance v. Bradley,440 U.S. 93,97 (L979). “[S]ome objectives … are not legitimate state interests” and, even when a law is justified by an ostensibly legitimate purpose, “[t]he State may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational .” Cleburne,473 U.S. at 44647.

At the most basic level, by requiring that classifications be justified by an independent and legitimate purpose, the Equal Protection Clause prohibits classifications from being drawn for “the purpose of disadvantaging the group burdened by the law.” Romer, 517 U.S. at 633; see also United States v. Windsor, 570 U.S. —, 133 S.Ct. 2675 (2013); Cleburne, 473 U.S. at 450; Rational basis review is a deferential standard, but it “is not a toothless one”. Mathews v. Lucas, 427 U.5.495,510 (1976).

The Supreme Court invoked this principle most recently in Windsor when it held that the principal provision of the federal Defense of Marriage Act (“DOMA”) violated equal protection guarantees because the “purpose and practical effect of the law … [was] to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages.” Windsor,570 U.S. —, 133 S.Ct. at 2693. The case at bar and many around the country have since challenged state laws that ban same-sex marriage as a result of that decision.

As you can see, last year’s Windsor v. U.S. Supreme Court decision striking down portions of the Defense of Marriage Act continues to reverberate through the many challenges of state marriage bans across the country. This case is no different, as Judge Piazza quoted extensively from the Windsor opinion. He also quotes from a statement Mildred Loving made for the 40th anniversary of Loving v. Virginia, the 1967 U.S. Supreme Court decision which struck down anti-miscegenation laws throughout the country.

Judge Piazza also pointed out that the state’s constitutional amendment banning same-sex marriage, which Arkansas voters passed in 2004 with 75% of the vote, is inconsistent with the rest of the state constitution, which he called “a dangerous precedent”:

Article 2, § 2 of the Arkansas Constitution guarantees Arkansans certain inherent and inalienable rights, including the enjoyment of life and liberty and the pursuit of happiness.

All men are created equally free and independent, and have certain inherent and inalienable rights, amongst which are those of enjoying and defending life and liberty; of acquiring, possessing, and protecting property, and reputation; and of pursuing their own happiness, To secure these rights governments are instituted among men, deriving their just powers from the consent of the governed.

ARK. Const., art 2, § 2.

In this case, Article 2 § 2 was left intact by the voters, but in Amendment 83 they singled out sarne-sex couples for the purpose of disparate treatment. This is an unconstitutional attempt to narrow the definition of equalrty. The exclusion of a minority for no rational reason is a dangerous precedent.

Furthermore, the fact that Amendment 83 was popular with voters does not protect it from constitutional scrutiny as to federal rights. “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” W.Va. State Bd. of Educ. v. Barnette, 319 U.S. 624,638 (1943). The Constitution guarantees that all citizens have certain fundamental rights. These rights vest in every person over whom the Constitution has authority and, because they are so important, an individual’s fundamental rights “may not be submitted to vote; they depend on the outcome of no elections.” Id. at 638.

Judge Piazza turned away the state’s arguments against same-sex marriage: that the ban is necessary to promote procreation, that it is a federalism issue, that the voters have a right to uphold tradition. And he also anticipated the complaints about activist judges: “The court is not unmindful of the criticism that judges should not be super legislators. However, the issue at hand is the fundamental right to marry being denied to an unpopular minority. Our judiciary has failed such groups in the past.” He then went into the 110-year history from the 1856 Dredd Scott decision, which held that even a former slave had “no rights or priveleges” of citizenship, to the 1967 Loving decision which recognized that, regardless of racial differences, “the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” Drawing on the Loving example, Judge Piazza concluded:

THEREFORE, THIS COURT HEREBY FINDS the Arkansas constitutional and legislative ban on s{Lme-sex marriage through Act 144 of 1997 and Amendment 83 is unconstitutional.

It has been over forty years since Mildred Loving was given the right to marry the person of her choice. The hatred and fears have long since vanished and she and her husband lived full lives together; so it will be for the same-sex couples. It is time to let that beacon of freedom shine brighter on all our brothers and sisters. We will be stronger for it.

Judge Piazza’s order came without a stay. But with it coming down after clerk offices around the state closed for the weekend, marriages may not be available until Monday. Attorney General Dustin McDaniel’s office has announced that they will ask for a stay and they intend to appeal. McDaniel said last week that he supports marriage equality, becoming the first state-wide office holder to do so. He also said however that his office would continue defending the state’s marriage ban in court.