Thursday, May 15, 2014


As I predicted in yesterday's analysis of the Arkansas Supreme Court's ruling dismissing the appeal of Judge Chris Piazza's ruling in the marriage equality case, Judge Piazza has now issued revisions to his prior order.  The revised order does the four things I listed:

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.*

* - Sort of.  See the discussion below.

In addition to ruling on the -208 matter, Judge Piazza broadened his ruling to include all sources of Arkansas law that could be used to prevent same-sex couples from legally married.

Although the revised order does not specifically direct the clerks to begin (or resume) issuing licenses, Judge Piazza did enter a permanent (not preliminary) injunction against enforcement of any of the laws he declared unconstitutional, in a manner that leaves no question as to what the defendant clerks are required to do.  More importantly, he extended that injunction to include the defendants (including the State of Arkansas) and their "political subdivisions," which would include all 75 counties.

Judge Piazza also in a separate order denied the defendants' application for a stay, saying that they have not shown how they would be damaged by the ruling, while the effect of a stay would be to continue to deny the Plaintiffs their constitutional rights--something that creates an irreparable injury.

In a third order, Judge Piazza made today's order retroactive to Friday, which settles the question of whether the issuance of marriage licenses before today's ruling was ultra vires, or "beyond the powers."  (It wasn't.  Those marriages remain valid.)

This order is much more sweeping than last Friday's initial order, and it is plainly designed to counter some of the arguments that the defendants had made.  In fact, I doubt very seriously that any county clerk--not just the six clerks who are defendants in the suit--has a legitimate basis for continuing to refuse to issue the licenses.  Counties are political subdivisions of the State, and the State has been enjoined.

Next up:  This order is immediately appealable, and the defendants will appeal and ask for a stay pending resolution of the appeal.  Will the Supreme Court issue a stay once this matter is appealed?  My guess is probably not, but anything can happen.

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