Attorney General Dustin McDaniel Monday asked the Arkansas Supreme Court to freeze a lower court's ruling that found Arkansas' prohibition on same-sex marriages unconstitutional, pending the state's appeal of the decision.

The high court did not immediately grant the emergency stay and asked attorneys for the plaintiffs in the case to respond to the request by noon today. Attorneys for county clerks named as defendants in the lawsuit — from White, Washington, Lonoke and Conway counties — later filed a separate motion for a stay, citing a state law not included in the ruling that prohibits issuing licenses to same-sex couples.

While the court battles continued, county clerks in Pulaski and Washington counties began issuing marriage licenses Monday to scores of same-sex couples. Saline County issued a half-dozen more. Three others named in the suit, White, Lonoke and Conway counties, said no licenses would be issued to gay couples.

On Saturday, the state filed a motion to appeal Pulaski County Circuit Judge Chris Piazza's Friday ruling that found the state's ban violated the state and U.S. constitutions and that the state was discriminating against same-sex couples.

That Saturday morning, Arkansas became the only Southern state to grant marriage licenses to gay couples.

The Carroll County clerk's office was the first to issue marriage licenses on Saturday, and by the close of business Monday, more than a hundred licenses had been issued around the state.

But questions remained about whether the marriages would be valid if the state Supreme Court reverses Piazza's ruling and whether the clerks around the state were compelled to issue licenses to same-sex couples.

Assistant Attorney General Colin Jorgensen wrote in the state's request for a stay that the U.S. Supreme Court granted a stay in a challenge to Utah's same-sex marriage ban and that the nation's high court "has already indicated the likelihood that [it] will ultimately affirm state marriage laws."

Jorgensen wrote that the lower court's ruling should be stayed to "avoid confusion and uncertainty" about its effect. Circuit clerks were also uncertain about whether they were compelled to issue marriage licenses immediately under the ruling, or if they were "required to refrain from doing so" under Amendment 83, which states that marriage is between a man and a woman.

Michael Rainwater and Jason Owens, attorneys for the four county clerks, wrote in filings with the high court that Arkansas Code Annotated 9-11-208 prevents county clerks from issuing licenses to same-sex couples. Wrongful issuance of a license is a misdemeanor criminal offense, punishable by a fine of up to $100-500 per license, the attorneys wrote.

Piazza's ruling did not specifically address the constitutionality of 9-11-208.

Theresa Beiner, a professor and associate dean at the University of Arkansas at Little Rock's W.H. Bowen School of Law, said the ruling "clearly binds the parties that are named in the lawsuit" but it was unclear whether the rest of the state's counties had to comply. Beiner said that the clerks not named in the suit could voluntarily decide to issue licenses to same-sex couples or await a decision by the high court.

"It's kind of an up-in-the-air question," Beiner said. "I've never really seen anything quite like this before."

Beiner said the county clerks named in the lawsuit had a little more leeway from the ruling because Piazza did not hand down an injunction, which would have ordered the clerks listed in the lawsuit to issue the licenses to same-sex couples. Without the injunction, Piazza's ruling allowed the clerks "some argument" that they don't have to issue the licenses yet, she said.

Beiner said the Supreme Court ruling will bind the entire state but, until then, the licenses and "marriages are in a quagmire."

Dustin Buehler, an associate professor at the University of Arkansas School of Law, said there was a "gray zone" for the county clerks not named in the lawsuit because it wasn't clear whether they should also comply with the ruling.

"This is a difficult day to be a county clerk in the state of Arkansas because I think it is a bit of a judgment call on their part about how broad this is," Buehler said.

Buehler said the ruling could affect other state laws involving marriage, such as state tax laws, but that it would likely play out over time and require more lawsuits. But Buehler said the county clerks would likely not be successful trying to "hide behind a state statute" that is clearly contrary to Piazza's decision.

As lawyers prepared to fight Piazza's ruling, officials in Little Rock, Fayetteville and Benton began issuing licenses to gay couples.

The Pulaski County clerk's office issued a total of 169 marriage licenses by the end of the day Monday, including some to heterosexual couples. Earlier in the afternoon, County Clerk Larry Crane said the majority of those were same-sex.

Monday morning, hundreds of gay couples and gay-rights supporters stood in line around the courthouse as they waited for the clerk's office to open at 8 a.m. Some stayed in line overnight in hopes of beating any possible court order that could halt their chances of getting a marriage license.

Crane said he received a copy of Piazza's order since he was listed as a defendant in the lawsuit.

"For us, it's pretty clear that we had a duty to honor that order and to proceed on," he said. "For the other counties it's not so clear. I was sued and the judge said, 'What you're doing is wrong.' It was a judge in my courthouse who was saying this to me. The better [response] is to say, 'Yes, sir, your honor.'"

It's hard to say what will happen if the state Supreme Court overturns Piazza's ruling, Crane said.

"It has been discussed that the Supreme Court could invalidate all those marriages," he said. "It has also been discussed that if that happened, all of those people would have a real good chance of going to federal court" claiming a violation of their constitutionally protected rights.

"It's not simple," he said. "But as of today, all of the [licenses] are valid."

Saline County Clerk Doug Curtis met with legal counsel — both county attorney Jonathan Greer and attorneys with the Association of Arkansas Counties — on Monday to confirm and clarify Friday's ruling, chief deputy clerk Darlene Westbrook said. County officials wanted to ensure they had all the paperwork ready to go before issuing licenses to gay couples, she said.

"[The ruling] came in after close [of business] on Friday," she said. "That's just a lot to get ready this morning."

The county hadn't sold any licenses by noon, she said, though "we have had calls all morning." By close Monday, the county had issued six licenses to same-sex couples.

Washington County clerks tallied 84 marriage licenses.

In the three other counties, officials waited for further instructions.

In White County, Clerk Cheryl Evans pointed to Arkansas Code Annotated 9-11-208, which states a "license shall not be issued to a person to marry another person of the same sex, and no same-sex marriage shall be recognized as entitled to the benefits of marriage."

"Honestly I don't know how the circuit judge can override the voters of Arkansas," she said.

No same-sex couples had come in seeking a marriage license Monday, she added.

Lonoke County Clerk Larry Clarke said it was too early to start to issue the licenses.

"It's just one of those things that needs to play out," he said. "It's just not — in my opinion — it's not fair to issue a certificate to a same-sex couple, have [the ruling] overturned and then have to void [the marriage license.]"

No same-sex couples have sought a marriage license there, he said, adding that a caller told his office Monday that it would be in contempt of court if it did not issue certificates to same-sex couples.

"The judge issued an opinion, not an order," Clarke said. "So, contempt is stretching it a bit."

Conway County Clerk Debbie Hartman said Monday that her office wouldn't issue marriage licenses to gay couples, but referred all other questions to attorney Jason Owens. Owens' office said he was in court all day Monday, and he did not return a message.

Those six counties "are compelled" to follow Piazza's ruling, said Fred Sainz, spokesman for the Human Rights Campaign.

"They are playing with fire," he said. "They aren't acting in accordance with civil government. The judge was very clear in terms of what his decision was."

He added that counties not listed in the lawsuit, including Carroll County, have started issuing marriage licenses to same-sex couples.

"You can rationalize obstructionism in every way you could possibly imagine," he said. "The bottom line is what side of history do you want to be on?"

The state Department of Health also began accepting changes to birth certificates Monday. As a result, gay couples could both be listed on their child's birth certificate.

By mid-afternoon, only about three couples had gone to the Vital Records division to add a parent to a child's birth certificate Monday, department spokesman Kerry Krell said.

Couples only need to fill out a form, which is then notarized at the Health Department, she said, adding that the changes would take into effect immediately after.

The Human Rights Campaign requested Saturday the U.S. Attorney General and the Department of Justice extend federal recognition to Arkansas same-sex couples, group president Chad Griffin said during a news conference Monday. The group hadn't heard back from the federal offices Monday.

The government has extended similar recognition in at least two other states — Utah and Michigan, said Human Rights Campaign's Sainz. In those states, gay couples began getting married after federal judges handed down "favorable marriage rulings," but the governors wouldn't recognize the unions, Sainz said.

There are some 1,300 federal rights and benefits associated with marriage, he said.

Clifford Rosky, a law professor at the University of Utah and chairman of Equality Utah, said same-sex marriage licenses were issued in that state for 17 days after a federal court ruling that threw out its ban and before the U.S. Supreme Court granted a stay. The American Civil Liberties Union filed a lawsuit to ensure that those marriages would continue to be recognized, regardless of what the appeals courts rule, he said.

Rosky said there still hasn't been resolution on the state level over the status of those licenses, including whether the state can undo adoptions that were granted for same-sex couples in that time.

"It's been just a real mess that has been really harmful to the gay couples and their kids," Rosky said.

Rosky said he "fully expects" the federal government to recognize the Arkansas licenses, as it did for Utah.

Metro on 05/13/2014