The Arkansas Supreme Court on Thursday, with some disagreement, suspended implementation of Pulaski County Circuit Judge Tim Fox's order affecting how birth certificates are issued, in a ruling that described his written findings as containing "inappropriate remarks."
The unsigned decision from the state's highest court comes a week after state attorneys representing the Arkansas Department of Health asked for an emergency stay in response to the Fox ruling on Dec. 1.
In the stay request, the agency, represented by the state attorney general's office, warned that Fox's decision could be interpreted as eliminating its authority to issue birth certificates.
Fox found constitutional flaws in state law regarding birth certificates after three same-sex couples sued the Health Department because the agency would not list the nonbiological spouse as a parent on the certificate of the child born to their union.
The families said they needed the nonbirthing spouse listed on the document to qualify for health insurance and other benefits for their children, all infants.
The judge granted their request to amend the documentation for the three couples' children, a decision the department did not appeal.
Fox also struck down provisions of the law he said assigned parental roles by gender, ruling those parts of the law illegal under the U.S. Supreme Court decision that legalized gay marriage, Obergefell v. Hodges.
The June decision by the federal high court also linked birth certificates to the right of marriage, according to Fox's ruling.
In the four-page majority ruling Thursday, the Arkansas justices wrote that a stay was necessary to preserve the status quo until the high court can address the legality of Fox's decision.
"The issues presented are complex, with portions of a statute being struck and substantial additions being made to a provision of the Arkansas Code by the circuit court," the majority wrote.
"Substantial confusion could result if the circuit court's order were to remain in effect and subsequently be altered by a decision of this court on appeal," the anonymous per curiam ruling states.
"Under these circumstances, the best course of action is to preserve the status quo ... with regard to statutory provisions while we consider the circuit court's ruling."
Justice Paul Danielson disagreed in a 31-word dissent that stated that the Health Department hadn't shown a real need to delay implementing Fox's ruling.
Fellow Justice Rhonda Wood wrote that she would not have stayed Fox's entire ruling. She wrote that she doesn't think the Health Department can win an appeal of the portion of Fox's opinion striking down parental roles linked to gender.
The decision by the agency not to challenge Fox's ruling as it applied to the three families indicates "at a minimum, the state concedes that children born subsequent to a same-sex couple's union should be issued birth certificates and that there is no irreparable harm in issuing the certificates," Wood stated in her two-page opinion.
"The balance of the equities weighs in favor of all same-sex couples having the right to have both spouses listed on the child's birth certificate when the child was born subsequent to that union," she wrote.
"This is especially true because these respondents are receiving immediate relief while, as a result of the majority's stay, others will not. Last, the public interest weighs in favor of recognizing children born of a lawful union so these children receive certain benefits."
Wood did join in the majority's decision to stay the part of the Fox ruling that concerned how the Health Department should list nonbirthing spouses for couples who marry after their child is born.
In supporting that stay, Wood predicted that the agency would prevail in its appeal on that part of Fox's ruling.
Thursday's per curiam order closed by noting that Fox's ruling included "inappropriate remarks" that the justices will address once all of the arguments have been submitted.
The justices didn't say what they specifically found inappropriate in Fox's decision.
But Fox appears to suggest in his ruling that the Supreme Court's inability to resolve the appeal of a related case, the 2014 ruling by Circuit Judge Chris Piazza that found Arkansas' bans on gay marriage were illegal, was "unnecessary" and could erode public confidence in the courts.
"Unnecessary delays in the issuance of opinions, as in the recent case ... do not promote societal confidence in judicial decisions," Fox wrote.
"Such delays provide a breeding ground for speculation of political intrigue or other illegitimate reasons for the delay -- whether true or not. The default during appeal should be in favor of affording all United States citizens their full and complete constitutional protections and rights during the appeal, not the continued deprivation of those rights."
On the issue of the birth certificates, Fox found that some of the state's arguments challenging the couples' lawsuit were invalid because the state Supreme Court could have resolved them in the appeal of the Piazza decision but did not do so.
The Piazza ruling was before the high court on appeal for 13½ months until the U.S. Supreme Court reached its decision on the question of same-sex marriage.
Arkansas justices responded to that ruling by dismissing the Piazza case because there were no further legal issues to be addressed.
Accusations that the high court had deliberately delayed proceedings were investigated, but no evidence of wrongdoing was found even though two justices had accused colleagues of engineering a delay.
Fox also referred to the state Supreme Court in his decision to deny a stay of his ruling.
"If, upon proper application by the state, the Arkansas Supreme Court desires to issue a stay that deprives the plaintiffs, and all other similarly situated Arkansas citizens, of their constitutional rights pending the appeal of this matter, the justices have been elected to judicial positions with the authority to issue such a stay," Fox wrote.
"This court, however, will not allow its authority to be used to deprive these Arkansans any longer of their constitutional rights."
A Section on 12/11/2015