Gay marriage back as judge fills out ruling

Same-sex marriages resumed Thursday afternoon in Little Rock after Pulaski County Circuit Judge Chris Piazza expanded his order striking down Arkansas' gay-marriage ban, acting in response to a finding by the state Supreme Court that his original ruling was incomplete.

Upon receiving the new order, the Pulaski County clerk's office immediately started issuing marriage licenses to same-sex applicants after a six-hour lapse brought on by the Supreme Court's Wednesday ruling.

"Now we go back and start issuing licenses again," Pulaski County Circuit/County Clerk Larry Crane said after reading Piazza's final order.

His decision made Pulaski County the only county in Arkansas issuing marriage license to gay applicants.

It was unclear whether Washington County would resume issuing licenses. Becky Lewallen, the county clerk, hadn't announced a decision by 8:30 p.m. Leaving her office at 5 p.m., she said she needed to "talk to more lawyers" before deciding what to do but would make an announcement by this morning.

Attorney General Dustin McDaniel has promised to oppose the ruling, despite his personal endorsement of same-sex marriage. His office had filed its appeal notice with Piazza within 46 minutes of the new order being released. It filed a petition for stay with the Supreme Court about 90 minutes after that.

While lawyers are fighting the ruling in court, politicians also are attacking Piazza's decision.

State Sen. Jason Rapert, R-Bigelow, said the Arkansas Legislative Council would take up a resolution this morning to express support for Arkansas' ban on same-sex marriage. The resolution, sponsored by Rapert, also will ask the Arkansas Supreme Court to invalidate the marriage licenses issued to same-sex couples. An interim resolution posted online Thursday afternoon showed 40 co-sponsors, including six Democrats.

Rapert said the licenses to same-sex couples were not legally issued and that there was "strong bipartisan support" for the resolution.

Other elected officials also are trying to block -- at least temporarily -- Piazza's ruling from taking effect.

County clerks in Conway, Lonoke, Washington, and White counties, four of the six defendants in the lawsuit, joined in a stay request Thursday.

But the Supreme Court indicated that a stay would not be imposed until early next week at the earliest.

The high court gave plaintiffs until noon Monday to file arguments against a delay in implementing Piazza's ruling. The court did not say when it would rule, but the justices typically don't meet again until their weekly private conference on Wednesdays. The justices also hold a weekly public session on Thursdays.

Piazza had earlier refused a request to suspend his ruling while the state appeals it to the state Supreme Court.

The judge ruled that the state's ban on same-sex marriage violates rights guaranteed by the state and federal constitutions.

Piazza declined Thursday to delay his order, stating in court filings that his ruling allowing same-sex couples to marry hurt no one but that continuing to deny gay residents the right to wed caused them "irreparable harm."

"This court ... cannot in good conscience grant such a request. There is no evidence that defendants, the state or its citizens were harmed by entry of the court's original order or that they will be harmed by the clarifications contained within the final order. However, the same cannot be said of the plaintiffs and other same-sex couples who have not been afforded the same measure of human dignity, respect and recognition by this state as their similarly situated opposite-sex counterparts," Piazza stated in his ruling. "A stay would operate to further damage Arkansas families and deprive them of equal access to the rights associated with marriage status in this state."

The clerks in Pulaski and Washington counties, the only two that were still issuing licenses to same-sex applicants, stopped Wednesday night after the Supreme Court's finding that Piazza's original order had overlooked Act 146 of 1997, which banned the issuance of marriage licenses to same-sex couples under Arkansas Code 9-11-208.

In his three-page final order Thursday, the judge wrote that he had intended to negate the entire ban in his original ruling. He made the ruling retroactive to "protect the rights and interests of all who reasonably relied on or acted in accordance with the letter, spirit and/or intent" of the May 9 order.

Piazza also labeled Thursday's ruling as his final order after the Supreme Court, responding to both an appeal by the attorney general's office and that agency's request for a stay, declined to act on the May 9 ruling.

The high court, in an unsigned opinion, stated it could not act because Piazza's original order was incomplete since it did not address all of the marriage-ban laws.

The state Department of Health, a defendant in the lawsuit, had been accepting changes to birth certificates by newly wed same-sex couples under Piazza's May 9 ruling. But the agency ceased the practice with the high court's finding that the original order was incomplete.

It will continue to decline requests from same-sex parents who want their names added to their children's birth-certificates even with Piazza's new ruling until its lawyers can advise them on how to proceed, said Cathy Flanagin, department communications director.

"We're going to try and work through this as quickly as possible," she said.

The agency's vital-records office will continue to archive licenses, however, she said.

With almost every county clerk in the state denying that Piazza has any jurisdiction over them, and four of the six county clerks named as defendants refusing to issue licenses despite the judge's original ruling, Piazza's final order contained more sweeping language than his May 9 ruling.

Saline County Clerk Doug Curtis stopped Tuesday after issuing six licenses, saying he would continue to abide by the ban. Clerks in Conway, Lonoke and White counties never issued any licenses.

The judge ordered that all defendants, which also includes the Department of Finance and Administration, "including their officers, employees, agents, representatives, instrumentalities and political subdivisions," are barred from enforcing the anti-gay-marriage laws listed in the lawsuit "or otherwise in existence to the extent [the laws] do not recognize same-sex marriages validly contracted outside Arkansas, prohibit otherwise qualified same-sex couples from marrying in Arkansas or deny same-sex married couples the rights, recognition and benefits associated with marriage in the state of Arkansas."

White County Clerk Cheryl Evans and Lonoke County Clerk Larry Clarke said Thursday afternoon that they were waiting for their legal counsel to advise them how to proceed. Saline County and Conway County clerks didn't return messages.

Arkansas Association of Counties spokesman Scott Perkins said the decision is still a local one. The association is advising that clerks meet with their county attorneys to devise a plan for the licenses.

Arkansas Association of County Clerks President Terri Harrison offered similar advice in an email to her fellow clerks after Piazza's final ruling, saying while there were new developments in the case, "many of you still are unclear what you should do."

"The only advice that I have for you is please consult with your county attorney and the two of you devise a plan for your respective counties," Harrison's email said.

Harrison "strongly" urged the clerks to ask their marriage-license software vendors to start making updates to the program "to make it possible for you to correctly and efficiently issue same sex marriage licenses."

"We do not want to wait until we have been ordered to begin to issue them and still have a program that we cannot use properly," she said. "In the event that we are ordered to begin issuing same-sex marriage licenses it is imperative that we have that capability."

In Washington County, officials hadn't yet reached a consensus on how to proceed.

George Butler, the Washington County attorney, said he and another attorney advised the county clerk to resume issuing marriage licenses to same-sex couples.

"We told her she needs to comply or she could be held in contempt of court," said Butler. "I presume she doesn't want that."

Butler said he thought Lewallen, who is a Republican, was under a lot of pressure from others in her party who didn't want her to issue any more licenses to same-sex couples.

"I know she is catching some flak from people within her own party," said Butler, who is a Democrat. "There's a loud contingent out there that's making a lot of noise. ... Be that as it may, the court has ruled and there could be sanctions if she doesn't comply."

Butler said he talked with Lewallen around 3:30 p.m. Thursday, and at that time she said she would resume issuing licenses to same-sex couples today.

Later Thursday afternoon, Lewallen met with Jim Reavis, former chairman of the Washington County Republican Committee. The two left her office together at 5 p.m.

Reavis referred a reporter to Lance Johnson, the current chairman of the county's Republicans.

"What the Washington County Republican Committee has urged her to do is follow the constitution of the state of Arkansas," said Johnson. "Let's wait until the courts bring some finality to this issue and proceed accordingly. ... Let's just sit tight."

Washington County issued 138 licenses to same-sex couples earlier this week, but the number applying was dropping by more than 50 percent daily. No same-sex couples arrived at the office Thursday seeking a marriage license, Lewallen said.

Pulaski County had issued nearly 300.

Tony Rogers, the prosecuting attorney in Carroll County, said the county clerk wouldn't be issuing marriage licenses to same-sex couples this morning and probably wouldn't resume doing so until the Supreme Court rules on a motion to stay Piazza's order.

"We're going to wait and re-evaluate [this] afternoon," he said. "It's a very fluid situation to say the least. ... We're having to stay on our toes this week."

Twenty-eight marriage licenses were issued to same-sex couples in Carroll County, including the first 15 in Arkansas history on Saturday in Eureka Springs.

Marion County issued one license to a same-sex couple Monday, but County Clerk Dee Carleton decided that night not to issue any more until there was some clarification regarding the court orders. Carleton couldn't be reached Thursday to see if she planned to resume issuing marriage licenses to same-sex couples today.

Unlike the other counties, Pulaski County -- the state's largest -- moved quickly to follow Piazza's order.

By 4:45 p.m. Thursday, about three hours after Piazza's final ruling was released, the Pulaski County clerk's office reported issuing 10 licenses to same-sex couples.

Gary Blonsky, 61, and Tony Hopson, 57, rushed in after hearing about the ruling.

The North Little Rock couple, who have been together for 35 years, missed the first window to marry after Blonsky had tended to his mother in New Jersey. Blonsky returned Wednesday night.

The men had talked about going out of state to marry, Hopson said, but they thought it didn't mean anything if their home state didn't recognize their marriage. So, when the couple got another opportunity to marry, they ran to the courthouse.

"I was going to finish the laundry," Hopson said. "But he said, 'No.'"

The two, he said, would go back to a daily routine.

"Things happen the way they happen. Windows close but they open again," Hopson said. "We've only had to wait 35 years."

The marriage won't change "the status of who we are to each other," Blonsky said. It will just acknowledge they are equal in the eyes of the law, he said.

Piazza's ruling was the result of a lawsuit filed in July, inspired by a U.S. Supreme Court ruling a week earlier that required the federal government to recognize gay marriages granted by individual states. The suit was filed by attorneys Cheryl Maples and Jack Wagoner on behalf of 21 same-sex couples, eight of whom were legally married in other jurisdictions, and a single woman seeking to divorce the spouse she had married in New York.

The plaintiffs argued that the marriage ban, enacted in part in 2004 by voter-approved Amendment 83 to the Arkansas Constitution, abrogated the rights guaranteed to them under the state and U.S. constitutions.

The state prohibition denied them tax benefits and insurance coverage available to married couples, they argued. The ban prevented them from making medical decisions involving their domestic partners, and interfered with how they raised their children, according to the lawsuit.

After 10 months of litigation, Piazza agreed, ruling last week that the prohibition that limits marriage to one man and one woman is illegally discriminatory because it serves no good purpose.

In his original ruling, he compared the ban on same-sex marriage to the now-discredited and illegal prohibition of interracial marriages. The ruling made Arkansas the first Southern state to allow same-sex marriages.

Arkansas Family Council President Jerry Cox, a chief proponent of the marriage-ban amendment, said he wasn't surprised by Piazza's final ruling.

"I'm extremely disappointed that a judge in Little Rock has decided to redefine the institution of marriage," he said. "We say we live under a rule of law, but if the judges are going to make the law for us, why bother to make laws? Why bother to have a legislature? Why bother to stand in line and vote? This judge has made himself into a super-lawmaker ... that's the level of frustration that's out there, I believe."

Cox added that he hoped the state Supreme Court justices will stay Piazza's ruling.

"And that way all this confusion ... will be put on hold until the Arkansas Supreme Court has the opportunity to give this a thorough review," he said.

The Human Rights Campaign, the nation's largest advocacy group for gay, lesbian, bisexual and transgender rights, continued to applaud Piazza's decision. The group recently established an office in Little Rock.

"No procedural obstacle should stand between committed and loving gay and lesbian couples in Arkansas and their constitutional right to marry," said President Chad Griffin, an Arkansas native.

Sean Beherec of the Arkansas Democrat-Gazette contributed to this report.

A section on 05/16/2014