Hundreds of same sex couples in Arkansas have received marriage licenses this week, after a Pulaski County judge last week reversed a 2004 statute prohibiting gay marriage in the state.
Now the couples who received licenses are waiting to see what happens next if the Arkansas Supreme Court issues a “stay” on the judge’s decision, as they wonder whether such an action would invalidate their marriages.
Fort Smith attorney Joel Price has been in practice for close to 40 years. He said the marriage licenses could be debated in court if the Supreme Court issues a “stay”.
“If the Supreme Court reverses the trial judge, then these marriages that have taken place in the interim, the question of their validity…will have to be litigated as well,” Price said.
If that situation plays out, it could raise concern for same sex couples who recently obtained marriage licenses.
“The particular people who got married can file their own federal lawsuit saying that the State of Arkansas is discriminating against them under federal law,” Price said.
Price said there are options for the state Supreme Court as well.
“The Arkansas Supreme Court can affirm the trial judge on state constitutional grounds or federal constitutional grounds,” Price said. “The Arkansas Supreme Court can reverse the trial court on state constitutional grounds or federal constitutional grounds.”
Price said a combination of the two is a possibility, with Supreme Court justices deciding the ruling may have violated state law, but might be legal federally.
“They might reverse it on state constitutional grounds, but affirm it on federal constitutional grounds,” Price said.
Price referenced the 14th Amendment as a potentially relevant section of federal law—equal protection under the law.
“All you have to be is a person to have full equality before the law,” Price said. “Are gay people persons? Are homosexuals persons? Sure they are persons. Just like black people are persons, Jews are persons, Muslims are persons. They are persons, so they are entitled to equal protection of the law.”
Price said legally, the state Supreme Court cannot amend the Arkansas Constitution.
Amending the state constitution can only be done by a vote of the public.