Most Arkansas county clerks say they will not issue same-sex marriage licenses

Friday's (May 9) ruling by Pulaski County Circuit Judge Chris Piazza that overturned the state's ban on gay marriage had many assuming that the path to same-sex marriage was finally cleared for all gay and lesbian couples across Arkansas. But the landscape for gay couples wanting to tie the knot Monday (May 12) was not all green pastures.

Most counties in the Fort Smith and Northwest Arkansas areas declined to issue marriage licenses to same-sex couples following Attorney General Dustin McDaniel's request for a stay on Piazza's decision and his filing of an appeal in the case.

Sebastian County Clerk Sharon Brooks issued a press release Monday morning explaining that her office would not be issuing licenses to same-sex couples "until ordered to do so by a court of competent jurisdiction." Brooks said onsultation with the Sebastian County prosecuting attorney led to her decision in relation to Piazza's ruling.

"I have consulted with Daniel Shue, Sebastian County Prosecuting Attorney, who has advised me with regard to the legalities of this very important matter. The ruling from the Third Division Court of Pulaski County is not binding on my office, and I will await the decision of the Supreme Court of Arkansas."

She added that the decision was her's "to make, and my office will continue to uphold the Constitution of the State of Arkansas as amended by Amendment 83."

The story was much the same in Benton and Crawford Counties, where the local county clerks both declined to issue marriage licenses to same-sex couples. Crawford County Clerk Teresa Armer said her decision came about following consultation with a deputy prosecutor in the county, who told her Piazza did not have jurisdiction over Crawford County.

Benton County Clerk Tena O'Brien said the county's legal counsel advised that Piazza's ruling only applied to defendants in the case of Wright v. State of Arkansas.

"Benton County was not named in that suit, so I am following the Arkansas law, the Arkansas Constitution right now," she said. "It's not a personal decision, it's because I took an oath of office in support of the Constitution of the United States and the Constitution of the state of Arkansas. Until a decision is handed down for the whole state, or the decision of the the circuit court (is issued) against me, I cannot issue a license."

Washington County, one of the named defendants in the above-mentioned case, did begin issuing marriage licenses to same-sex couples Monday. Of the 83 licenses issued Monday (as of 3 p.m.), an employee in the county clerk's office said 80 of those were for same-sex couples.

Attorney Matt Campbell of the Pinnacle Law Firm in Little Rock and the man behind the left-leaning Blue Hog Report blog told The City Wire in January that he thought Piazza would use the 14th Amendment's equal protection clause to overturn the state's 2004 ban on gay marriage, a prediction that turned into reality Friday.

Campbell said questions regarding the authority of Piazza's ruling were off base, adding that even though he is a circuit judge in Pulaski County, he "has the power to invalidate a state law. The counties didn't have a say when it (the Constitutional amendment banning gay marriage) was passed to enforce it. If a judge overturns it, they don't have power. The counties just exist to enforce the laws as they exist at the time."

In some counties, including Sebastian, some couples were at courthouses at opening time Monday to apply for marriage licenses but were greeted with the decisions of some local county clerk's to not issue the licenses.

While Campbell said under normal circumstances those couples would likely have grounds for a lawsuit, he said it was unlikely to see any lawsuits against Brooks or others since the Supreme Court is expected to issue a stay sometime Tuesday (May 13) or Wednesday (May 14).

"They are (entitled to be married), but the window (to do so before a stay is issued) is going to be so small that I don't think anybody will (file suit). If there's not a stay and they continue to do it (deny licenses), then they open themselves up to a lawsuit. …Once there is a stay, it's harder to bring a suit, even if you were denied a license today."

The deadline for plaintiffs in the case to respond to the stay request is noon Tuesday, though Campbell said it could be as late as October before oral arguments are heard since the Supreme Court will be taking a recess in the next month.

Any sort of decision as a result of those oral arguments is unlikely for at least a month to three, he said.

Ultimately, Campbell said the case would likely be appealed to the U.S. Supreme Court, adding that Arkansas' case would likely be heard before a case in neighboring Oklahoma since the Arkansas case has fewer legal hurdles.

"If it gets appealed to the U.S. Supreme Court, it could get ahead of the Oklahoma case. It would not have to go through the multiple (federal appeals courts) levels that the Oklahoma case does. It just jumps from our Supreme Court to the U.S. Supreme Court, so it could fast track it."