AG McDaniel sets appeal in motion on Arkansas’ same sex marriage ban

Arkansas Attorney General Dustin McDaniel said Tuesday (Dec. 23) that he would appeal a federal judge’s ruling that struck down Amendment 83, the state’s constitutional ban on same-sex marriage.

U.S. District Judge Kristine Baker ruled last month that the ban was unconstitutional, but she stayed her ruling allowing for an appeal.

The Arkansas Supreme Court is also considering a decision on the law thanks to a similar lawsuit, but it has yet to make a determination.

McDaniel said he is filing a notice of appeal with the 8th Circuit U.S. Court of Appeals in St. Louis regarding Baker’s decision ahead of a pending deadline and, in part, due to the fact that the state’s highest court has yet to make a ruling.

“I had hoped that the Arkansas Supreme Court would rule in Wright v. Smith prior to the deadline to file notice of appeal in the federal case. Had they done so, their guidance would have been helpful,” McDaniel said. “Because it appears that the Arkansas Supreme Court will not announce its decision before December 26, which is the deadline to submit a notice of appeal in the federal case, I believe it is necessary to file this notice, in keeping with my obligation to oppose all challenges to our State Constitution.”

In May, Pulaski County Circuit Judge Chris Piazza ruled that Arkansas' ban on gay marriage – approved by nearly 75% of voters in 2004 – was unconstitutional. Licenses were issued briefly in some counties across the state, but a stay was eventually issued halting same sex marriages in Arkansas while the case goes through the appeals process.

A resolution approved by the Arkansas Legislative Council on June 20 included language to "explore legislative remedies to prevent the Arkansas Constitution and the will of the people of this state from being negated by judicial activism which violates the separation of powers ensured in our form of government."

Same sex couples are able to receive marriage licenses in most counties across the state of Oklahoma following the United States Supreme Court's decision on Oct. 6 to not hear arguments in five different federal cases in which lower federal court judges found state bans on gay marriage to be unconstitutional.

While the Supreme Court's refusal to hear the cases from Oklahoma and four other states has opened the door to gay marriage in those states, the ruling had little impact in other states where gay marriage has been ruled unconstitutional by state or local courts, including in Oklahoma's eastern neighbor of Arkansas.