Attorneys for the state of Arkansas on Wednesday asked state and federal judges in Arkansas to put a hold on pending lawsuits over same-sex marriage until the U.S. Supreme Court resolves a Utah case with similar issues.
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A day earlier, the state of Utah asked the nation's highest court to review a district judge's Dec. 20, 2013, ruling that Utah's marriage laws violate federal due process and equal protection guarantees. The ruling in Kitchen v. Herbert was upheld on June 25 by the 10th U.S. Circuit Court of Appeals, which is based in Denver.
The request, coupled with a stay already issued by the U.S. Supreme Court in another case, is an indicator that the U.S. Supreme Court may soon issue a ruling in another Utah marriage case that is considered "a companion case" to Kitchen, according to motions that the Arkansas attorney general's office filed Wednesday in Little Rock, in both federal court and the Arkansas Supreme Court.
"The question presented to the United States Supreme Court by Utah is: 'Whether the 14th Amendment to the United States Constitution prohibits a state from defining or recognizing marriage only as the legal union between a man and a woman," wrote Assistant Attorney General Nga Mahfouz.
In a motion to stay the Arkansas case that is pending before U.S. District Judge Kristine Baker, Mahfouz said attorneys for Utah have presented the U.S. Supreme Court with a "broad question" that "encompasses the federal due process and equal protection claims raised in this case by the plaintiffs who seek recognition of their marriages from other jurisdictions and the plaintiffs who seek to marry in Arkansas."
In the lawsuit, which has seen little activity since it was filed on July 15, 2013, two lesbian couples -- Rita and Pam Jernigan, and Becca and Tara Austin -- are challenging the constitutionality of Amendment 83 to the state constitution, which decrees that marriage is between a man and a woman, and other state laws pertaining to marriage.
A similar lawsuit filed earlier last year in state court led to Pulaski County Circuit Judge Chris Piazza's May 9 ruling that the state bans against same-sex marriage are unconstitutional. The Arkansas Supreme Court stayed the ruling on May 16 until it can hear the state's appeal.
Meanwhile, the plaintiffs in the federal case asked Baker last month to issue a summary judgment, a ruling based solely on legal principles, to resolve their case by declaring the state laws unconstitutional, as Piazza did. The state opposes the request.
Also, an attorney representing Pulaski County Circuit-County Clerk Larry Crane, a defendant in the federal case, asked Baker in November to dismiss the federal case, arguing that federal courts shouldn't interfere with ongoing state proceedings.
Baker hasn't ruled on either of the requests.
Among the arguments Mahfouz and Assistant Attorney General Colin Jorgensen made Wednesday in asking Baker and the Arkansas Supreme Court to stay the Arkansas cases pending a ruling from the U.S. Supreme Court was the desire to promote judicial economy, avoid confusion and avoid potentially inconsistent results.
If the U.S. Supreme Court agrees to hear Herbert v. Kitchen, "then the outcome of this case will be controlled by the Supreme Court's decision in that case, and any proceedings before this court will be moot," Mahfouz said in her motion in the federal case. "Without a stay of these proceedings, the parties and the court will suffer the hardship of unnecessary and unwarranted litigation, and the parties and the court could suffer the hardship of a ruling quickly reversed or modified by the United States Supreme Court."
Similarly, Jorgensen wrote in his request for a stay to the Arkansas Supreme Court, "Only the United States Supreme Court can decide the constitutionality of state marriage laws under the federal constitution in a way that commands the respect, allegiance and compliance of all states -- and until the United States Supreme Court provides that decision, any lower court ruling, including a ruling by the court in this case, is subject to reversal."
If the U.S. Supreme Court denies the request to hear the Kitchen case, then the stay at the Arkansas Supreme Court "should be dissolved at that time," Jorgensen said. But, he argued, if the high court grants the request to hear the Kitchen case, "the stay should remain in effect pending the U.S. Supreme Court's ruling in Herbert v. Kitchen, and the U.S. Supreme Court's ruling will control the outcome in this case."
Metro on 08/07/2014