Speed ruling on vows ban, justices urged

An attorney for same-sex couples on Tuesday urged the Arkansas Supreme Court to speed up its decision on the constitutionality of a state ban on gay marriage and to immediately lift its stay on a lower court's ruling throwing out the ban.

Attorney Cheryl Maples of Searcy cited the "serious irreparable harm each and every day that this stay remains in effect." She noted that the court issued a stay on May 16, a day after the state lodged an appeal of Pulaski County Circuit Judge Chris Piazza's May 9 ruling throwing out Amendment 83 to the state constitution as unconstitutional. The amendment, overwhelmingly approved by the state's voters in 2004, prohibited gay marriage in Arkansas and also prohibited the state from recognizing same-sex marriages performed in other states.

The stay has been in place for nearly nine months while parties to the suit have awaited the court's decision on whether to uphold or reverse Piazza's ruling. Meanwhile, Maples said, even though the lawsuit was the first filed after the U.S. Supreme Court struck down portions of the federal Defense of Marriage Act, similar suits in other states have progressed at a faster pace, to the point that only Arkansas and 12 other states continue to prohibit gay marriage.

A similar suit filed in federal court in Arkansas was decided on the plaintiffs' behalf on Nov. 25, and is scheduled to be argued before the 8th U.S. Circuit Court of Appeals in mid-May alongside cases from South Dakota and Missouri, all of which are in the 8th Circuit's jurisdiction.

Maples said several recent moves by the U.S. Supreme Court, including its decision to hear arguments on four similar cases from other regions of the country in April, and its denial of a request to stay an Alabama judge's findings that are similar to Piazza's, are "strong indications" that it will find Arkansas' Amendment 83 unconstitutional.

She noted that one of the arguments a party seeking a stay must show is its likelihood to succeed on the merits. Another is the likelihood of irreparable harm unless a stay is imposed. She said the state cannot show either, but, "the harm to Plaintiffs is real, immediate and should not continue."

Maples also pointed to Piazza's decision not to stay his order last year because of the threat of irreparable harm a stay would impose on the plaintiffs.

"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," he wrote.

"A continuation of the stay only perpetuates the ongoing and irreparable dignitary, legal, financial and practical harms suffered by the Plaintiffs," Maples said, citing the right to make health decisions for the other spouse, to equal distribution of property obtained during the marriage, to share in employment benefits and to claim a deceased spouse's body, among other things.

On Feb. 5, the Arkansas Supreme Court directed Maples and attorneys for the state to submit written briefs on Attorney General Leslie Rutledge's request for a second round of oral arguments.

Rutledge, a Republican who took over the attorney general's post in January from Democrat Dustin McDaniel, cited a change in the court's membership in the new year, with new justices replacing two who heard oral arguments in the case in November and whose terms then expired Dec. 31.

The court hasn't said whether the appeal of Piazza's ruling will be decided by the justices who heard the arguments or by the reconfigured court that includes two justices who didn't hear the arguments. A special justice who was appointed by former Gov. Mike Beebe to hear oral arguments in the case is expected to remain on the case until a decision is rendered.

Maples' response to the court's Feb. 5 directive was filed Tuesday along with her motion for an immediate lifting of the stay. The directive gave each side 30 days to respond.

Maples has called Rutledge's request for a second round of oral arguments "unprecedented," unsupported by both legal precedent and the court's routine practices, and unnecessary. In the response she filed Tuesday, Maples apologized if her opposition to additional arguments appears to be in opposition to the two newest justices.

"Appellees' concern was and is due to the continued delay in the rendering of a decision that would be totally unnecessary if the Justices that have had the matter under submission since Nov. 20, 2014, were permitted to finalize their work," she said.

Maples noted that the court "recognized the need for an expedited appeal process on Oct. 23," when it moved up oral arguments to Nov. 20. She said any further delay for the purpose of re-arguing the case "runs counter to" the court's decision to expedite the case in October.

In response to the request for legal justification regarding oral arguments, Maples said "there is no authority" and that "the issue presented is novel."

Metro on 02/18/2015