FURTHER UPDATED 3:53 p.m.   Judge Piazza, setting the stage for a new appeal on same-sex marriages in Arkansas, on Thursday afternoon issued three final orders: barring enforcement of all laws in the state against such marriages, back-dating his ruling to last Friday, and refusing to stay his decision pending appeal.

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UPDATED 3:09 p.m.  Judge Piazza has notified lawyers in the case that he will issue a new order later Thursday that will bar county clerks from refusing to issue marriage licenses to same-sex couples, modifying an earlier order to correct what he described as “clerical errors.”  If not blocked by him or by a higher court, the order would appear to allow clerks to resume issuing such licenses imminently.

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Less than a week after scores of same-sex couples in Arkansas began lining up to get marriage licenses, the process has halted as lawyers and judges seek to sort out just what part of the state’s ban on such marriages has been nullified.

In a move to clear up at least part of that uncertainty, lawyers for the couples who won an apparently decisive victory last Friday filed a new motion Wednesday evening, seeking a correction of the judge’s ruling in their favor to make it broader.

State Circuit Judge Christopher Charles Piazza of Little Rock had apparently struck down the state ban last week.  The following day, same-sex couples flocked to clerks’ offices to get licenses to wed.  By Wednesday night, records showed that 456 couples had obtained licenses.  How many, if any, have actually been married is unclear, and, if they have, their legal status is uncertain.

When the challenge to the ban was filed by twenty couples (twelve hoping to marry, and eight already married and seeking recognition of that fact), they asked Judge Piazza to strike down a state constitutional amendment imposing the ban and three specific state laws that restrict marriage to man-woman couples and bar same-sex couples from obtaining marriage licenses.

The lawsuit sought a declaration that all of those provisions were invalid, and an injunction to bar their enforcement.   The judge appeared to have struck down all of them in a declaratory ruling, but he did not bar enforcement of them.

However, state officials and county clerks, on closely examining the actual decision, found that the judge’s order finding unconstitutionality had not mentioned the law that barred licenses for same-sex couples.  Based on that interpretation, most county clerks in the state refused to issue licenses to those couples.

On Wednesday, ruling on a state request to postpone Judge Piazza’s ruling, the Arkansas Supreme Court refused to do so.  Among other reasons, it said that his ruling was not final, because he had not ruled on all the issues before him, so the state’s highest court had no jurisdiction.

The opinion also noted that the judge had not ruled on the ban on licenses for such couples, so that law remained in effect to bar county clerks from doing so.

The couples’ lawyer had conceded, in filings in the higher court, that the judge in fact had not ruled on that provision.  They said that this was “an oversight” and said they would promptly file a motion in the trial court “to request that the court address this issue.”

Within a short time after the state supreme court ruled, the motion was filed in Judge Piazza’s court, the Circuit Court of Pulaski County.  Saying that in Arkansas a judge has power to correct a ruling already issued, the motion asked that the order on constitutionality be extended to all of the state’s laws “that prevent same-sex couples from marrying or having their lawful marriages recognized,” and requested that all such laws be barred from enforcement.

In an apparent plea to provide legal cover for the marriage licenses already issued since last Friday, the motion asked the judge to use a procedure (nunc pro tunc) that would back-date his broader order to last Friday.

Judge Piazza still has pending before him a state plea to postpone his ruling while it pursues an appeal to the Arkansas Supreme Court.  Presumably, state officials will continue to press for delay during the expected appeal from any new order.

Shortly after the state supreme court acted on Wednesday, county clerks who had been issuing marriage licenses to same-sex couples called a halt.

Posted in Featured, Same-Sex Marriage

Recommended Citation: Lyle Denniston, Arkansas: Same-sex marriage in limbo (UPDATED), SCOTUSblog (May. 15, 2014, 1:59 PM), http://www.scotusblog.com/2014/05/arkansas-same-sex-marriage-in-limbo/