Clerk in LR backs same-sex marriage

The clerk of the state's most populous county came out in support of overturning the state's ban on same-sex marriages Monday, breaking ranks with several other public officials in an ongoing suit before the state's highest court.

Despite being listed as a defendant in the case, Pulaski County Clerk Larry Crane sided with gay-marriage supporters in his Monday filing, stating that his office has a right to resolve the "irreconcilable" conflict between the state's gay-marriage ban and Article 2 of the Arkansas Constitution, which guarantees "liberty, privacy and equality to all Arkansans."

"[The gay-marriage ban] targets a minority to strip them of rights," Crane wrote. "It does so for no other reason ... than to protect the majority from unfounded and irrational fears or to impose a majoritarian morality."

Crane issued nearly 300 marriage licenses to same-sex couples after the May ruling by Pulaski County Circuit Judge Chris Piazza that found current state law, as well as a voter-approved amendment banning gay marriage, violated the Arkansas and U.S. constitutions.

Since the ruling, Crane's office is one several county clerk's offices enmeshed in an effort by the state to have the lower court's ruling overturned by the Supreme Court, which stayed the decision May 16.

Crane stated that though there are prohibitions against public officials challenging a law's constitutionality, they can when such laws involve public rights.

The Pulaski County clerk also argued that the bans violate privacy protections that apply to heterosexuals and homosexuals alike and are, in effect, a form of "sexual policing" and moralizing.

Crane did not return calls to elaborate on his support of Piazza's decision to overturn the same-sex marriage ban.

Cheryl Maples, one of the attorneys representing same-sex couples seeking to sustain Piazza's order to invalidate the state's gay-marriage laws, described Crane's gesture as something of a revelation.

Unaware of any precedent for such an about-face from a public official, Maples said Crane's support of same-sex couples' rights was evident in his enthusiasm for issuing marriage licenses in the few days they were legal last summer.

"Filing a brief as an appellant yet completely supporting the appellees, I've never heard of it, it's amazing," Maples said. "He has recognized the violation of the Constitution [by same-sex marriage bans] where others apparently have not. That really speaks to his grasp of the law, and his job, and people."

Crane's filing came on the same day as one from the office of Attorney General Dustin McDaniel, who has spoken out in favor of same-sex marriage in the past but has committed his office to upholding the state's laws on the matter.

In the newest filing, made on behalf of the Arkansas Department of Health, McDaniel's office argues that Piazza "erred" in his findings that the state's laws banning gay marriage were unconstitutional and that they violated due process and equal protection clauses of the U.S. Constitution.

The filing questions the judge's reasoning by arguing that by virtue of being a constitutional provision, the state's gay-marriage ban is incapable of violating the state constitution and that in addition to the rights of "liberty, privacy and equality," Arkansans are entitled to "alter, reform, or abolish" state laws and amendments by vote.

Citing a precedent from federal case law, McDaniel's office wrote:

"The [appellants] in this case insist that difficult question of public policy must be taken from the reach of the voters, and thus removed from the realm of public discussion, dialogue and debate in an election campaign," he noted. "It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds."

It further argued that states, not the federal government, have authority when it comes to domestic relations.

Attorney general office spokesman Aaron Sadler said his office had no comment on Crane's filing and said it would have no bearing on his agency's position that Piazza erred in his ruling.

Maples and fellow attorney Jack Wagoner have 30 days to file their response to Monday's filing, but Maples said she doubted it would take them that long.

After that, McDaniel's office will have another 15 days to make their last filing before the case is considered by the Supreme Court.

On Monday, it remained unclear who would be considering the case.

Last Wednesday, Supreme Court Justice Cliff Hoofman sent a letter to Chief Justice Jim Hannah and notified him that Hoofman "must disqualify" himself from considering the case.

His recusal came weeks after an unsuccessful attempt by opponents of the ban to get Supreme Court justices facing future elections to recuse themselves so their findings would be free of any political implications. Hoofman was appointed to the court by Gov. Mike Beebe in 2012 and is not eligible for re-election.

Beebe spokesman Matt DeCample said Beebe's office has not yet settled on a candidate to replace Hoofman for considering the same-sex issue.

DeCample said that despite the high-profile, political circumstances surrounding the case, the governor's selection would go through the normal process applied to other recusals.

"I think we're critical in all our evaluations [of candidates] and making sure that in any case that the person you appoint doesn't have any conflict of interest that would lead them to having recused themselves as well," DeCample said. "Our purpose is to get the most qualified person to hear the case."

DeCample said Hoofman did not give a reason for recusing himself from the case. When reached by email, the justice would not elaborate on his decision to recuse.

Metro on 09/16/2014

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