Last week was a crazy one for marriage equality advocates in Arkansas. First, on May 9, Pulaski County Circuit Court judge Chris Piazza struck down the state’s same-sex marriage ban, allowing couples to apply for an estimated 500 marriages statewide over the next seven days. County clerks in some districts questioned the ruling, citing a separate law prohibiting them from issuing marriage licenses to same-sex couples. Piazza responded Thursday with a clarified order stating that he did intend to strike down all laws prohibiting same-sex couples from marrying, including the law about issuing licenses.
— South 4 Marriage (@South4Marriage) May 10, 2014
State Attorney General Dustin McDaniel — who has come out in favor of marriage equality but says he is obligated to uphold the state constitution that prohibits it — filed an appeal and requested an immediate stay, which would halt all marriages until the case could be resolved, but since Piazza had initially denied that stay, marriages continued. A flood of adorable newlywed photos followed, to the joy of anyone who needed a good happy cry last week — only to be halted by last-minute State Supreme Court ruling Friday. That one-sentence decision, handed down at 4:30 p.m., granted the attorney general’s request for stay and put at least a temporary end to marriages statewide.
So what does all this judicial back-and-forth mean? Well, first, no same-sex couples can get married in Arkansas until the State Supreme Court hears the case. That could be a long wait, but it may come before the November elections, when it would become easy political fodder for candidates. The legality of those 500 marriage licenses issued between the initial ruling and the stay is not entirely certain, but it stands to reason that they will be upheld, much like the Californian same-sex marriages that remained valid after Proposition 8 was passed. However, under the stay, the state will not have to recognize marriages performed in other jurisdictions, which was a key part of Piazza’s original ruling.
The Supreme Court order is also disheartening because it disregards Piazza’s basis for denying a stay in the first place. As part of his clarified order Thursday, he spoke of the “irreparable harm” that comes from denying a constitutional right like marriage, and how granting those rights while the issue is being litigated doesn’t actually hurt anybody else. From Piazza’s order:
There is no evidence that Defendants, the State or its citizens were harmed by the entry of the Court’s original order or that they will be harmed by the clarifications contained within the Final Order and Rule 54(b) certification.
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. 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.
So, this rests Piazza’s decision on two crucial points marriage equality advocates have been pushing for years: the idea that marriage to a same-sex partner is a constitutional right on par with marriage to someone of a different sex, and the notion that allowing same-sex couples to marry does no harm to straight couples, children, the state or the world at large. Because the Supreme Court order was so brief, it’s hard to know if that court agrees with those ideas or if they, like the attorney general, believe they are obligated to fully examine the constitutionality before marriages begin.
The good news is that it is getting harder and harder to legally justify same-sex marriage bans in the wake of last summer’s United States v. Windsor Supreme Court ruling. With a key part of the federal Defense of Marriage Act invalidated and the federal government declining to defend rules putting same-sex couples at a disadvantage, many states are seeing their own marriage laws as indefensible. If the Arkansas court follows the footsteps of states like Idaho, Utah and New Mexico, then plaintiffs in upcoming cases will have more and more legal precedent to challenge discriminatory laws.