Hold your horses

This post has been updated for clarity.

So the Arkansas Supreme Court issued a ruling [PDF] a little while ago on a couple of matters that were pending before it in the marriage equality case.  Of particular importance is the fact that the Court denied the defendants' application for an emergency stay.  The Court also dismissed the appeal.

It is tempting to view these developments as indicating in some fashion which way the Court is leaning, but caution is appropriate.

The most important thing that you should understand about appellate courts is that they do not like to decide things they don't have to.  Because people pay special attention to what appellate courts say--and that's especially true of the state Supreme Court, in state cases--it is important for those courts not to say more than they need to.  In practical terms, the purpose of that policy is to keep a court's options open.

In this case, the Court dismissed the appeal because it was too early.  If you read Judge Piazza's opinion carefully, you'll see that it is not a final order or judgment.  The opinion deals with just one aspect of the case--the part in which the plaintiffs asked for a declaration that the laws in question are unconstitutional.  But Judge Piazza has not ruled on the other part of the case, the part in which the plaintiffs asked for an injunction (an order directing someone not to do something) against enforcement of the laws.  He has also not ruled on the defendants' application for a stay of the ruling.

Even though Judge Piazza has made it clear how he is likely to rule on these questions, he has not actually done so.  Until he does, the case is not "ripe" for appeal, and under its own rules and procedures, and probably under the limitations on the Court's authority, the Supreme Court really was not in a position to do anything other than what it did, regardless of the justices' views of the case.

The fact that the Supreme Court has dismissed the appeal and denied the stay does not indicate in either direction how it is likely to rule on the ultimate issue.

Hopefully, Judge Piazza will rule on these questions quickly.  It is not serving anyone's particular interests--either pro- or anti-marriage equality--to have these matters hanging out there.  I expect that relatively soon, you will see a new order from Judge Piazza, which will do some or all of the following:

1) Confirms the unconstitutionality of Amendment 83 and Act 144 of 1997.
2) Finds that Ark. Code Ann. § 9-11-208(b), which prohibits clerks from issuing marriage licenses to same-sex couples, is unconstitutional for the same reasons as Amendment 83 and Act 144 of 1997.
3) Enjoins the State and the state-wide officials--at least preliminarily--from enforcing any of those laws.
4) Directs the clerks who are defendants in these cases to begin issuing licenses to same-sex couples who apply.

(By the way, on that second point...it strikes me as particularly specious for the defendants in this case to suggest that there is some way to reconcile the unconstitutionality of Amendment 83 and Act 144 of 1997 with the constitutionality of Ark. Code Ann. § 9-11-208(b).  They rise or fall together.  That being said, the lack of a ruling on Ark. Code Ann. § 9-11-208(b) gives them the cover necessary to avoid issuing licenses if they so choose--until that issue is corrected, that is.)

The open question is whether he will grant a stay.  There is a four-part test to determine whether a stay is appropriate pending an appeal, but generally speaking, judges issue stays of their rulings when there is a substantial open question about the law, such as when there is an issue of first impression in a court, or when reasonable minds can differ about the ruling, and when there is a right at stake that is so substantial that denying a stay would work an irreparable injury to the party seeking the stay.

Frankly, he could go either way on that question.  However, there is a strong presumption against a stay of an order designed to protect a substantial right against infringement by the government.

Once a final order and judgment has been issued--with the small exception that the grant or denial of a preliminary injunction request is considered a final judgment for purposes of appeal--and the stay has been granted or denied, then the defendants may appeal.

One more point that I fear may get lost in the shuffle here:  Judge Piazza has found, as a general proposition, that denying same-sex couples marriage licenses is unconstitutional under the Fourteenth Amendment of the U.S. Constitution.  Because every elected official swears an oath of office that includes, first and most importantly, a promise to support the Constitution of the United States, any elected official is justified in disregarding an unconstitutional law.  At last check the Pulaski clerk was still issuing licenses, though he may be the only one in the state. (There is some confusion as to whether Carroll County is issuing them.)
 
The order from Friday provides those officials who issued marriage licenses thereafter the necessary constitutional cover, despite the lack of a specific order to issue the licenses.  However, until a proper order directing them to issue the licenses is issued, the decision about whether to continue to do so rests with those officials--at peril of being ordered later to comply, and of contempt of court if they fail to comply after being ordered.

Once that order has been issued, however, the matter becomes non-discretionary, at least as to the six clerks who are part of the suit.

We'll keep an eye out for further developments.