The Arkansas Supreme Court on Wednesday declined to suspend a circuit judge’s ruling that the state’s gay marriage ban is unconstitutional. The court’s ruling, though, states a law banning same sex marriage licenses remains in place.
One local lawyer said the opinion may mean same sex marriage licenses obtained this week are illegal, and now all counties in Arkansas have suspended issuing same sex marriage licenses.
Lynn Lisk, the director of the Legal Assistance/Paralegal Department at the University of Arkansas at Fort Smith, said same sex couples who got married in Arkansas this week may soon have their marriage licenses revoked because of a law not addressed in last week’s ruling lifting the prohibition of same sex marriage in the state.
Lisk said Wednesday’s Supreme Court ruling did more than refuse to grant a stay on the issuing of same sex marriage licenses. It also states a Pulaski County judge failed to issue a specific ruling allowing county clerks to issue same sex marriage licenses, he said.
Lisk said to clarify the issue, the original judge must issue a new ruling addressing the law that prohibits county clerks from issuing same sex marriage licenses.
“The Supreme Court says they are dismissing the appeal as untimely because the judge has not ruled on everything yet,” Lisk said. “So all those marriage licenses were technically issued in violation of a law that was still on the books.”
Lisk said at least two of his colleagues in Little Rock agree with his assessment.
A Pulaski County Circuit Court judge on Friday ruled Arkansas’ ban on same sex marriage, approved by voters in 2004, was unconstitutional. Several Arkansas counties responded by issuing marriage licenses to same sex couples earlier this week, before most of them stopped because they wanted clarity on the law.
Several county officials said earlier this week they would wait for the Supreme Court to weigh in on the subject. Pulaski and Washington counties continued handing out marriage licenses through Wednesday, bringing the total number of same sex marriage licenses issued in Washington County to 138.
County clerks for Pulaski and Washington counties, though, said they plan to discontinue handing out same sex marriage licenses, following the Supreme Court’s ruling.
Although the justices did not issue a stay, it is still unclear exactly what the Supreme Court ruling means for counties’ ability to issue marriage licenses to same sex couples.
Some area same sex couples who got married this week feared a Supreme Court stay could put their marriages in uncertain territory. Wednesday’s ruling against a stay did not specifically address those fears.
Arkansas Atty. Gen. Dustin McDaniel had unsuccessfully petitioned the high court to issue a stay in the case, at least temporarily suspending the judge’s ruling.
“(McDaniel) asserts that an emergency stay is necessary ‘while this court considers the (McDaniel’s) appeal, in order to avoid confusion and uncertainty about the effect of the circuit court’s order on Arkansas marriage law,’” the Supreme Court opinion states. “Further, (McDaniel) asserts that circuit clerks across Arkansas are uncertain about whether they are required to immediately issue marriage licenses to same sex couples.”