Hear more on marriage ban, AG tells court

Plaintiffs see stalling as state urges 2nd round by justices

NWA Media/DAVID GOTTSCHALK - 7/17/14 - Leslie Rutledge, a republican candidate for the State of Arkansas Attorney General, speaks Thursday July 17, 2014 at the Northwest Arkansas Political Animals Club meeting in Fayetteville. Democratic candidate Nate Steel also spoke.
NWA Media/DAVID GOTTSCHALK - 7/17/14 - Leslie Rutledge, a republican candidate for the State of Arkansas Attorney General, speaks Thursday July 17, 2014 at the Northwest Arkansas Political Animals Club meeting in Fayetteville. Democratic candidate Nate Steel also spoke.

Correction: Justice Rhonda Wood was sworn in to the Arkansas Supreme Court earlier this month, replacing Justice Cliff Hoofman, who has been appointed to the Arkansas Court of Appeals. Wood’s first name was incorrect in this article.

Arkansas Attorney General Leslie Rutledge on Friday asked the Arkansas Supreme Court to hear a second round of oral arguments in the state's pending appeal of a ruling striking down the state's same-sex marriage ban.


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The newly sworn-in attorney general explained in a news release: "Two associate justices were not seated on the Arkansas Supreme Court when the first oral argument was held in November 2014, and Chief Justice [Jim] Hannah was absent due to a national meeting of chief justices. I believe the Court would benefit greatly from a second oral argument."

Cheryl Maples, the lead attorney in the case that led to Pulaski County Circuit Judge Chris Piazza's May 9 ruling that Amendment 83 to the state constitution is unconstitutional, said she doesn't believe that a new round of oral arguments is necessary and that any further delays "would be damaging to my clients. Every day that goes by, they're financially and emotionally damaged."

Maples said Friday that Hannah "was out of town, yes, but he was able to review the oral arguments by video." She said anyone can go online to watch and listen to the arguments, "as can the new justices."

"I know that Leslie Rutledge has got her constituents to think of ... but this has got to be for purposes of delay," Maples said.

In her announcement, Rutledge said, "The people of Arkansas should know that as Attorney General, I will vigorously defend any challenge against Arkansas's Constitution."

She said the state Supreme Court may be waiting to rule until the U.S. Supreme Court reviews same-sex marriage cases originating in Kentucky, Michigan, Ohio and Tennessee. The 6th U.S. Circuit Court of Appeals recently upheld bans on same-sex marriages in those states, and the U.S. Supreme Court announced last week that it will review the appellate court's ruling.

The U.S. Supreme Court will consider only two questions: whether the U.S. Constitution requires states to issue marriage licenses to same-sex couples, and whether states must recognize same-sex marriages performed in other states. The case will be argued in April and a decision is expected by late June.

The state's high court agreed in October to expedite oral arguments on the state ban. On Nov. 20, attorneys argued before the state's highest court in the morning, and then before U.S. District Judge Kristine Baker, where a similar lawsuit focusing more on federal law was pending, in the afternoon.

Although some people expected the state court to rule first, Baker beat them to the punch, issuing a 45-page ruling on Nov. 25 declaring the state's ban unconstitutional. A spokesman for the state's highest court said in late December that the justices were unlikely to decide the issue until the new term began Jan. 7.

Meanwhile, Justice Donald Corbin retired Dec. 31 and was replaced by Robin Wynne, a former judge on the state Court of Appeals who was sworn in Jan. 6. Justice Cliff Hoofman, who was appointed in 2012 to serve out the term of another retiring justice, was replaced this month by Robin Wood. Hoofman didn't hear the oral arguments in November because he had recused from the case. Instead, Judge Robert McCorkindale -- like Hoofman, an appointee of former Gov. Mike Beebe -- sat in Hoofman's place during oral arguments.

A court spokesman, Stephanie Harris, has said McCorkindale would probably remain on the case until a ruling is issued. She said Friday that court rules allow 10 calendar days for the filing of a response to Rutledge's motion, and that she doesn't know when the court would decide the motion.

Having another round of oral arguments would be "just more work and a waste of time," Maples said Friday. Citing written briefs and videotaped arguments, she said, "They've got what they need to rule."

If the U.S. Supreme Court rules on the gay-marriage issue before the Arkansas Supreme Court rules, the Arkansas case basically becomes moot, she said. She said she doesn't want that to happen because the nation's high court won't address some issues of "first impression" concerning Arkansas' constitution, and those issues "really need to be addressed." A first-impression case presents a new question of law that isn't governed by existing precedent.

Referring to Amendment 83, which was overwhelmingly approved by voters in 2004, she said, "This constitutional amendment in effect denies gay and lesbian couples their inalienable rights." She said issues of whether the amendment violates equal protection guarantees is "real important here, because throughout Arkansas history, there were never any restrictions put on marriage until 2004," until the approval of Amendment 83.

That, she said, violated the equal-protection clause of the state and federal constitutions by declaring gay marriages the only kind of marriages not recognized in Arkansas.

"There are states that allow first cousins to marry, and although in Arkansas it's not legal, they can come to Arkansas, and it's always been recognized," Maples said.

As an example of the practical effect of that, she said that if a same-sex couple married in another state was involved in a fatal accident in Arkansas, the surviving spouse couldn't file a wrongful-death lawsuit.

Rutledge's news release noted that the Arkansas Supreme Court "has the authority to rule on the issues before it, including state constitutional issues that will not be addressed by the U.S. Supreme Court," while pointing out that neither the state nor the plaintiffs in the case that led to Piazza's ruling have requested a stay in the state case.

Asked how Rutledge would respond to Maples' comments that a second round of oral arguments isn't necessary and must be for purposes of delay, spokesman Judd Deere said the news release speaks for itself.

The news release noted that Rutledge's predecessor, Dustin McDaniel, filed a notice of appeal of Baker's ruling on Dec. 23, and the state's opening brief is due at the 8th U.S. Circuit Court of Appeals in St. Louis on Feb. 17.

Maples said Friday that she isn't clear why it's taking the Arkansas Supreme Court so long to rule.

"It's frustrating to my clients and the whole LGBT [lesbian, gay, bisexual and transgender] community," she said.

She added, "I want the public to understand what the issues are. It's not holy matrimony we're fighting over. It's civil matrimony and civil rights."

Metro on 01/24/2015

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