As Arkansas Couples Marry, State Seeks Legal Clarity and Stay

An estimated 400 same-sex couples have married in Arkansas since a state judge struck down constitutional and statutory bans on such marriages Friday, but officials are awaiting a ruling from the state's Supreme Court to determine the validity of those marriages — and if licenses should continue to be issued to gay and lesbian Arkansans as the state appeals the ruling. 

Pulaski County Circuit Judge Chris Piazza issued his ruling Friday evening, invalidating the state's ban on performing same-sex marriages or recognizing those legally performed in other states. Piazza did not include a stay of that decision, prompting five counties to begin issuing marriage licenses to same-sex couples starting Saturday morning. 

In response, the state's attorney general, Dustin McDaniel, a Democrat who has said he personally supports marriage equality, nonetheless has filed several motions with Piazza's court and the state Supreme Court seeking clarity on the scope of that ruling and requesting a stay that would bar county clerks statewide from issuing additional marriage licenses to same-sex couples, according to Little Rock TV station KARK. 

McDaniel told the Arkansas Times he's happy to let the Piazza's court clarify the initial ruling, either revising the decision to address a number of other statutes that reference marriage as the union of one man and one woman or granting a stay of the ruling as the state appeals. In the meantime, however, McDaniel has asked the Arkansas Supreme Court to stay Piazza's ruling to prevent further confusion. Briefs responding to McDaniel's request for a stay were due to the Supreme Court on Tuesday evening, prompting attorneys for the same-sex couples who initially filed suit to ask the court to dismiss McDaniel's request. The court could rule at any time on that motion. 

Today McDaniel again asked the Supreme Court to stay Piazza's decision, writing that "confusion is pervasive, and this court should exercise its superintending authority over [state] circuit courts to issue a stay," according to the Associated Press.

Meanwhile, Arkansas governor Mike Beebe wants the Supreme Court to determine whether the hundreds of same-sex marriages that have been performed in several Arkansas counties are legal, according to the AP. The governor also included a subtle response to former governor turned Fox News host Mike Huckabee, who suggested that Piazza should be impeached for his ruling, which followed the legal precedent set by more than a dozen federal and state courts that have considered marriage equality since the U.S. Supreme Court's landmark rulings striking down the federal Defense of Marriage Act and California's Proposition 8. 

After Piazza's Friday ruling invalidated Arkansas's anti–marriage equality laws, five counties began issuing marriage licenses to same-sex couples starting Saturday morning. Since then, however, two of those counties have stopped providing the licenses to gay and lesbian couples, pointing to a Saturday directive from the Association of Arkansas Counties that instructed counties not to issue such licenses if the office did not have proper software to create and distribute gender-neutral applications. Other clerks have argued that Piazza's ruling did not address several other state statutes that refer to marriage as the union of a man and a woman, leaving legal uncertainty about whether same-sex marriages are actually permitted statewide.

ThinkProgress reports that as of Wednesday, only Pulaski and Washington counties are issuing marriage licenses to same-sex couples, while Saline and Marion counties stopped doing so Tuesday, citing legal confusion surrounding Piazza's ruling. 

Scott Perkins, communications director for the Association of Arkansas Counties, told ThinkProgress's Zack Ford:

"Piazza’s decision, despite overturning the ban on same-sex marriage, did not include an injunction ordering counties not to enforce it. Thus, the six county clerks named in the suit were left 'unclear if they were being instructed to issue same-sex licenses. Moreover, Arkansas’ other 69 counties were left similarly in doubt as to whether the decision applies statewide."

Until the Supreme Court issues a stay, however, same-sex couples are expected to continue applying for — and receiving — marriage licenses, at least in Washington and Pulaski counties, the latter of which includes the state capital, Little Rock.