Let marriage ruling stand, plaintiffs urge

They cite harm from a stay

Julie Gerlinger fills out the information on a marriage license as newlyweds Lisa Weber (center) and Terri Langley-Weber look on. Gerlinger officiated at the couple’s wedding Tuesday at the Pulaski County Courthouse in Little Rock.

Julie Gerlinger fills out the information on a marriage license as newlyweds Lisa Weber (center) and Terri Langley-Weber look on. Gerlinger officiated at the couple’s wedding Tuesday at the Pulaski County Courthouse in Little Rock.

Wednesday, May 14, 2014

The Arkansas Supreme Court should not block a lower court's ruling that struck down the state's ban on same-sex marriages because it would cause immediate and irreparable harm to the 20 same-sex plaintiffs in the lawsuit, an attorney for the plaintiffs wrote in court documents Tuesday.

Jack Wagoner, an attorney for the 20 couples who filed suit challenging the state's marriage ban, also asked the high court to dismiss the state's appeal of Pulaski County Circuit Judge Chris Piazza's ruling Friday, saying Piazza's ruling did not address all of the issues raised in the lawsuit, so the appeal is premature.

Homosexual couples have been marrying in some counties since Piazza's ruling Friday because Piazza did not stay, or freeze, his order in anticipation of an appeal.

On Tuesday, at least 117 more marriage licenses were issued to same-sex couples in Arkansas; 79 in Pulaski County and 38 in Washington County.

Attorney General Dustin McDaniel's office requested Monday that the high court stay Piazza's ruling, arguing that the U.S. Supreme Court recently granted a stay in a similar case out of Utah. McDaniel's office also said that by granting the stay, the court could "avoid confusion and uncertainty" about the marriage law.

Attorneys for four county clerks named in the lawsuit wrote a separate request for a stay, saying Piazza's ruling did not address another state law that makes it a crime for them to issue licenses to same-sex couples.

As the seven justices on the high court received the documents, county clerks in Pulaski and Washington counties continued to issue marriage licenses to homosexual couples. Several other counties Tuesday refused to issue any more licenses until they receive guidance from the courts.

The high court had required the plaintiffs to file their response to the stay appeal by noon Tuesday. The court did not announce when a decision would be made on the state's stay request.

The justices generally conference on Wednesdays, release opinions on Thursday mornings and conference again on Thursdays. However, the court has the option of meeting earlier and releasing rulings at any time.

Wagoner and Cheryl Maples, attorneys for the plaintiffs, wrote that the state had failed to address how the plaintiffs would be harmed by the stay or what harm would be caused by not issuing a stay.

"Moreover, other than references to a variety of federal cases in which a stay was granted, the Defendants-Appellants provide no argument that they are likely to succeed on appeal, despite an unbroken wave of state and federal cases finding similar state laws to be blatantly unconstitutional," the plaintiffs wrote.

Wagoner wrote that in similar requests for stays, federal courts have held that the party requesting the stay must show that the party has a strong chance of winning on appeal, that the applicant would be irreparably harmed without a stay, whether a stay would substantially injure other parties involved in the case and explaining whether it's in the public's best interests.

Wagoner wrote that the state had failed to show that any of the relevant factors justified a stay and that there was "no basis for confusion" over the ruling.

However, harm to the plaintiffs in the case if a stay is granted would be "immediate, real, continuing, undisputed and irreparable," Wagoner wrote.

"[C]ontinuing the denial of the now established right to marry, or having one's lawful marriage treated as a nullity, independently exposes Plaintiffs-Appellees to irreparable and continuing insecurity, vulnerability and stigma. ... Same-sex couples who wish to marry are subjected to irreparable harm every day that they are denied their right and forced to live without the protection and security that marriage provides. That harm is not speculative, but immediate and real," Wagoner wrote.

In response to some county clerks' concerns about Arkansas Code Annotated 9-11-208, which if a county clerk violates is a misdemeanor, Wagoner wrote that a stay was not the right remedy. The clerks should instead ask Piazza to clarify his ruling to include any effect it has on that statute, he wrote.

In a filing Tuesday afternoon, Wagoner asked the court to dismiss the appeal so Piazza could rule on whether A.C.A. 9-11-208 was unconstitutional and whether the county clerks should be ordered to issue licenses.

The state would have until 10:30 a.m. today to respond to his motion.

The Saline County clerk's office stopped issuing marriage licenses to same-sex couples Tuesday. It had issued six Monday, the office said.

The clerk's office issued the licenses "with the intention that the office was following state law," according to a statement from Saline County Clerk Doug Curtis.

"Upon additional information being presented, it has been determined that the recent ruling by Pulaski County Circuit Judge Chris Piazza that the law concerning marriages has become vague and unclear," the statement said. "Therefore until the law is clarified and the state is following one law in unity, the Saline County Clerk's office will follow the Constitutional Amendment 83 that defines marriage between a man and a woman."

Voters passed that amendment in 2004, with 753,770 favoring it and 251,914 opposing it.

"Elected officials should be empowering voters, not overruling their vote," Curtis said in the statement. "I do not believe that one circuit judge should have the authority with the stroke of a pen to dismiss over 750,000 Arkansas voters."

Curtis added that Piazza ruled the amendment unconstitutional "with reckless abandonment" as the judge "did not exercise wisdom by placing a stay on his decision."

Chief Deputy Clerk Darlene Westbrook said two gay couples tried to marry Tuesday morning and were turned away. She didn't know if the couples tried to go to Little Rock after that.

In Carroll County, 28 marriage licenses were issued to same-sex couples Saturday and Monday. Of that number, 27 were issued at the Western District courthouse in Eureka Springs and one at the Eastern District courthouse in Berryville.

Fifteen of the Carroll County licenses were issued Saturday in Eureka Springs. The city has the only clerk's office in Arkansas that's open on Saturdays, so the first marriage licenses issued to same-sex couples in Arkansas history were Saturday in Eureka Springs by Jane Osborn, a deputy county clerk.

About 11 a.m. Monday, Carroll County Clerk Jaimie Correia stopped issuing marriage licenses to same-sex couples.

Correia sent out a news release Tuesday saying she decided to stop issuing the licenses after she received a call from Tony Rogers, the county's prosecuting attorney.

In the news release, Correia said Rogers advised her to stop issuing the licenses after he received information from Mike Rainwater of Little Rock, the legal counsel for the Risk Management Fund, in which 46 counties pool resources to provide legal defense services for civil liability claims.

Rainwater said he was contacted by civil attorneys for two counties -- Carroll and Marion -- and he told them Judge Piazza's ruling addressed two laws that banned same-sex marriage in Arkansas, but not a third. Rainwater said he offered no advice to the county attorneys, only information.

Rainwater was referring to Act 146 of 1997, which amended Arkansas Code Annotated 9-11-208.

"It was in the complaint," said Rainwater of the original lawsuit. "It was like the first paragraph of the complaint, so it was clearly requested. ... So why the judge left that out I don't know, but he did. So technically that particular statute is still in play -- 9-11-208."

Maples, the Searcy attorney who filed the lawsuit that led to the ruling, said not addressing the third law was an "accidental omission" on Piazza's part.

"He certainly would not have allowed a statute to remain in place allowing courts to not issue licenses if he thought that was unconstitutional," she said. "He left out one of the acts accidentally. ... The language of the ruling is very clear that Judge Piazza thought denying couples the right to get married was unconstitutional."

Dee Carleton, the Marion County clerk, said she issued one marriage license to a same-sex couple Monday, then decided that night not to issue any more based on the information from Rainwater.

With other counties declining to issue marriage licenses, homosexual couples rushed to Fayetteville and Little Rock, hoping to get one and fearful that their window of opportunity would close if they waited too long.

Sarah Johnson, 28, and Courtney Sargent, 24, left their Heber Springs home about 6 a.m. Tuesday and set off for the courthouse in Saline County, where Johnson's mother lives. The two were 10 minutes away from Benton when they learned that the Saline County clerk's office was no longer issuing marriage licenses to same-sex couples.

They made a U-turn and headed to Little Rock. They arrived just after 9 a.m.

"Once we were so close, she had to tell me, 'Don't run. I can't walk that fast,'" Johnson said.

The two walked up to the counter at the Pulaski County Courthouse and picked up an application that Sargent filled out. With her feet nervously tapping against the ground, Johnson called her mother to give her directions to the clerk's office.

"Since we had to drive so far, we were stressing about getting here and getting it done," Sargent said.

The pair originally planned to marry today, Johnson said, after she got paid. But once they heard that state Supreme Court justices could stay Piazza's ruling, the two -- who have been together for 2 1/2 years -- decided to move everything up.

"We scrimped everything together and decided to go at 9 p.m. [Monday]," Sargent said.

After telling "both [of their] mamas," scrounging up the $60 and filling their gas tank, the couple started driving early Tuesday.

In Little Rock on Tuesday, they awaited the arrival of relatives and a friend, who was going to officiate. Everyone slowly trickled in -- first Johnson's mother and sister -- then their officiant, Earvin Johnson.

"Let's get this show on the road," Earvin Johnson said.

In the courthouse rotunda, tucked between two pillars, the couple held hands, looked into each other's eyes and recited their vows.

Moments later, the married couple kissed and embraced.

"To us, this is our day," Sarah Johnson said. "Just not our official day." The two plan to have a formal wedding in the fall.

The couple was among the 79 issued marriage licenses Tuesday at the Pulaski County Courthouse.

Earlier Tuesday, droves of couples gathered at the courthouse in the capital city, though in fewer numbers than the day before when 164 same-sex couples received licenses. A line formed when the clerk's office opened Tuesday, but was gone within an hour.

Jimmy Sanders, 66, and Faron Kirkpatrick, 60, got to the courthouse just before 8:30 a.m. They were "very much" afraid that they wouldn't be able to marry before the state's high court ruled in the gay-marriage case.

"We wanted to miss the rush," Kirkpatrick said. "It wasn't important for us to barge down the doors to be the first ones there."

The North Little Rock men have been a couple for 29 1/2 years and had thought about marriage before hadn't pursued it.

On Monday night, Kirkpatrick surprised Sanders with a proposal -- Kirkpatrick arrived home and handed over a card. Inside the card was a Taco Bell hot sauce package that read "Will you marry me?"

"Necessity dictated we come in [Tuesday]," Kirkpatrick said. "The future holds no guarantees."

After the officiant pronounced them husbands, tears streamed down their faces. They briskly walked back to the clerk's counter and turned in their signed marriage license. As the two left, Kirkpatrick playfully punched Sanders on the back and smiled, saying, "Yes, yes!"

"I'm going to go home and bake a wedding cake," Kirkpatrick said.

While gays were receiving wedding licenses and reciting vows, politicians from both parties were weighing in on the legality of the matter.

Democratic Gov. Mike Beebe told reporters Tuesday that there is "a lot of lack of uniformity right now obviously because some counties are issuing and some counties are not issuing" marriage licenses to gay couples. "The Supreme Court is probably going to expedite [the case] so that they can clear up any confusion, or clear up one way or the other any disparity between what different counties are doing," he said.

Beebe said he doesn't know if the marriage licenses issued to gay couples are valid because "I quit practicing law a numbers of years ago. I think the Supreme Court will have to answer that question."

The governor again rejected calls for Piazza's impeachment, saying, "That's what the appeals process is for. You don't do that because you don't agree with the decision unless somebody has committed a crime or something."

Former Gov. Mike Huckabee is among those who have called for Piazza's ouster. On his website, Huckabee has said the governor "should call a special session of the Legislature and impeach the judge and affirm the people's will."

"The dangerous precedent of elected officials allowing one single member of the judicial branch to become Lord God of law is dangerous and unconstitutional," Huckabee wrote.

The law -- Article 15, Section 1 and 2, of the state constitution -- states that constitutional officers, judges and prosecuting attorneys are subject to impeachment for "high crimes and misdemeanors and gross misconduct in office."

House Speaker Davy Carter, R-Cabot, said Monday that he opposes impeaching Piazza over his ruling in this case, and several other legislative leaders said they're reluctant to go down the impeachment road.

Information for this article was contributed by Bill Bowden and Michael R. Wickline of the Arkansas Democrat-Gazette.

A section on 05/14/2014