Arkansas Supreme Court ruling leaves uncertainty on gay marriage

The Arkansas Supreme Court has refused to delay a lower court ruling last week that struck down the state’s ban on gay marriage, but also said Wednesday that a law banning clerks from giving marriage licenses to same-sex couples remained in place.

The Supreme Court’s order is expected to prompt Pulaski County, which includes the capital city of Little Rock, to stop issuing licenses as the case continues to play out in court.

State Atty. Gen. Dustin McDaniel had asked the high court to stay Friday’s ruling by Pulaski County Circuit Court Judge Chris Piazza that the state’s same-sex marriage ban was unconstitutional.

Clerks in a few counties have issued hundreds of same-sex marriage licenses in the days since. But most of Arkansas’ 75 counties awaited further guidance from the courts, with the Supreme Court offering nothing new on Wednesday, experts said.

Specifically, Piazza declared unconstitutional a state law and a voter-approved constitutional amendment that defined marriage as only possible between a man and a woman.

In filings to the Supreme Court, the state had called for a emergency stay to keep that definition of marriage in place until the appeals process wrapped up.

On Wednesday, the Arkansas Supreme Court dismissed the appeal and rejected the request for a stay. The court noted that the state and the couples who brought the lawsuit agreed that Piazza had yet to rule on two other key provisions of the lawsuit: the couples’ request for an injunction and a statute barring clerks from issuing same-sex marriage licenses.

It’s unclear why Piazza did not immediately consider those issues, though attorneys for the gay couples said it may have been an accidental oversight.

The Supreme Court said the state could not appeal the case until the lower court ruled on those unresolved issues.

“The court’s order is not final, and we have no jurisdiction to hear the appeal,” the high court ruling said.

As far as the stay, the court pointed to the fact that clerks were still barred from issuing same-sex marriage licenses.

“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,” the Supreme Court said. “Accordingly, we deny the state’s petition for an emergency stay of the circuit court’s May 9, 2014 order.”

A spokesman for McDaniel said in a statement Wednesday that the lack of a stay “unfortunately” leaves uncertainty.

“Instead, we will move forward handling our responsibility to defend the Constitution and appeal the judge’s decision at the appropriate time,” spokesman Aaron Sadler wrote.

Pulaski and Carroll counties are among those that have issued same-sex marriage licenses in the last few days, but it’s unclear whether those are valid, the attorney general’s office said.

Carl Tobias, a constitutional law professor at the University of Richmond, called Wednesday’s order “difficult to decipher.”

“What is unclear is what clerks should do now,” Tobias told the Los Angeles Times. “Some of this may be clarified when the trial judge issues his final decision.”

A lawyer representing the gay couples in the lawsuit didn’t immediately respond to a request to comment.