story by Roby Brock, a TCW content partner and owner of Talk Business
The Arkansas Supreme Court denied a state of Arkansas request for a stay in a ruling that struck down Arkansas’ ban on same-sex marriages, but the court’s order created more confusion.
Attorney General Dustin McDaniel requested a stay from the state’s high court after Pulaski County Circuit Judge Chris Piazza apparently struck down Arkansas’ ban on same-sex marriages last Friday.
The case challenges a statute passed in 1997 and a constitutional amendment to the Arkansas Constitution, approved by voters in 2004. Both exclude same-sex couples from marriage and forbid the state from recognizing same-sex marriages from other jurisdictions.
The case, Wright v. Arkansas, is one of several Arkansas cases and resembles suits in other states. Seventeen states and the District of Columbia allow for same-sex marriages, while 33 states currently prohibit the practice.
“Motion to dismiss appeal granted without prejudice; motion for emergency stay denied,” the Supreme Court said in a seven-page order.
Initial interpretation of the Supreme Court’s denial of stay suggested that counties may proceed issuing marriage licenses for same-sex couples while the court considers further legal action. However, legal experts contacted by Talk Business & Politics say the Supreme Court ruling claims that technically Judge Piazza never issued a final order in the case and did not address the state statute that prohibits county clerks from issuing marriage licenses to same-sex couples. That interpretation could mean that clerks never had the final court authority to issue same-sex marriage licenses after Piazza’s decision was handed down.
The Supreme Court may have invalidated all marriage licenses issued since this weekend was the consensus of two legal experts. A third expert indicated that all scenarios are still in play, but that Judge Piazza’s final ruling — which has not been issued — could help clarify technical legal issues for the court.
A fourth legal expert suggested the high court could be buying time to build more consensus among colleagues for a decision in the case. He noted that a stay is typically issued when there is a strong chance a legal body may overturn a decision. Corbin’s and Danielson’s concurrence opinions, in which they said they would have rejected the stay request, suggests that they may support upholding the Piazza decision.
VOTER ID RULE
The Arkansas Supreme Court also struck down a lower court ruling that the Arkansas voter ID law was unconstitutional. The controversial measure that requires voters to provide photo IDs in many instances was overturned as unconstitutional by Pulaski County Circuit Judge Tim Fox two weeks ago.
In the case considered, Fox had issued his ruling related to the handling of absentee ballots. But Fox went beyond that central point in the case by declaring the full law as unconstitutional.
The Supreme Court said Fox did not have the authority to consider the constitutionality of the voter ID law in his decision. However, Fox has also ruled the law unconstitutional in another case that came before him that did seek a determination on the law’s legal merits. An appeal of that case is still pending before the court.
In a separate case hoping to provide clarification on the qualifications of judicial candidates, Kelly v. Martin, the Arkansas Supreme Court ruled that candidates whose licenses were briefly suspended for late payments of annual dues are eligible for election. The case actually centered on Judge Tim Fox’s eligibility after he was late last year in paying his annual legal license dues. The plaintiffs argued that Fox — and potentially other delinquent payers — had not met a threshold of being a “licensed attorney” for six years prior to being elected.
In a divided court opinion, the majority said that the lower court ruling was invalid. The majority of justices relied on the interpretation of phrases such as “suspension,” “disbarment,” and “reinstatement” to render its finding.
“Accordingly, we conclude that, under amendment 80, even though Judge Fox failed to pay his annual license fee for forty-five days in 2013, he nevertheless remained a licensed attorney during the period of delinquency because his license was not terminated and his name was not removed from the list of licensed attorneys,” Justice Jospehine Hart wrote for the majority.
Another case, Chandler v. Martin, also addressed a similar situation involving Faulkner County Circuit Judge H.G. Foster, who was declared eligible for the ballot.