Gay marriages void, state argues in filing

Circuit judge asked to delay or toss suit

The marriage licences issued to gay couples married in Arkansas last year are illegal and invalid, making those same-sex unions void, the state's lawyer argued in response to a lawsuit seeking to force state officials to recognize gay marriages.

The state wants Pulaski County Circuit Judge Alice Gray to throw out the February lawsuit or at least put it on hold until either the Arkansas or federal supreme court decides on the validity of the May court decision that the state's ban on gay marriage violates the U.S. Constitution.

Gray should dismiss the suit because the circuit courts don't have the authority to do what the plaintiffs are asking her to do since their marriage licenses are illegal, Assistant Attorney General Colin Jorgenson argued in his Wednesday response to the lawsuit on behalf of the state defendants. Those are the Arkansas Department of Finance and Administration, the state Health Department and the offices of the governor and attorney general.

Gov. Asa Hutchinson and Attorney General Leslie Rutledge should be dismissed from the litigation regardless because they have no role in enforcing the gay-marriage ban, Jorgenson said.

If the judge declines to strike the suit, Jorgenson argued, she should freeze the litigation until those higher courts rule on the validity of Circuit Judge Chris Piazza's May ruling that the ban, written into state statute and the Arkansas Constitution, violates the U.S. Constitution.

The state Supreme Court took up the appeal of Piazza's decision, with the promise of an expedited ruling eight months ago.

In arguing that the plaintiffs' licenses and marriages are illegal, Jorgenson said the state's high court did not recognize Piazza's initial ruling as being sufficient to bar the enforcement of the state ban.

It was not until Piazza issued a second decision six days later that the state Supreme Court found his decision was sufficient to halt enforcement of the ban, Jorgenson stated in his seven-page response to the lawsuit.

"According to the Arkansas Supreme Court ... the circuit court (initial) order granted no injunction, and it had 'no effect' on the 'prohibition against circuit and county clerks issuing same-sex marriage licenses,'" his pleading states, quoting from the high court's findings.

Piazza's initial ruling was on May 9, with the first same-sex marriages in the state issued in Carroll County the next day. Circuit clerks in Washington and Pulaski counties began issuing the licenses on May 12. Piazza issued his clarifying order on May 15, with the Arkansas Supreme Court taking over the case on appeal and staying his ruling on May 16.

In seeking at least to freeze the litigation, Jorgenson argued that the Arkansas and federal high courts are poised to make rulings that could resolve the issues raised by the lawsuit.

"Without a stay, the parties and the court will be forced to pursue unnecessary and unwarranted litigation over issues that may be impacted by rulings from the U.S. Supreme Court or the Arkansas Supreme Court," the pleading states. "In order to promote economy of time and effort for itself, for counsel and for the parties, and in order to avoid confusion and the risk of inconsistent result with cases presenting controlling constitutional questions to the Arkansas Supreme Court and the U.S. Supreme Court, this court should stay proceedings pending guidance from a controlling court."

The plaintiffs are seeking to have their unions officially recognized so they can file their state income tax forms as married couples, acquire joint health insurance from the state and obtain spousal Social Security benefits.

"To date there has not been a finding that the same-sex marriages performed in May 2014 are not valid. Defendants refuse to recognize these marriages," the lawsuit states. "Upon information and belief, until these marriages were performed, the defendants ... have never refused to recognize any marriage license that was properly issued ... performed and filed."

The five plaintiffs are two gay couples, Angelia Frazier-Henson and Katherine Henson, and Markett Humphries and Dianna Christy; and widower Allen W. Cox, who all married with Arkansas licenses. Cox's spouse, Steven Hall Thomas, died last year. The plaintiffs are represented by attorney Cheryl Maples, one of the architects of the challenge to the same-sex marriage ban.

The federal Social Security Administration is also a defendant but has not responded to the lawsuit.

A Section on 04/03/2015

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