U.S. decision on marriages trumps states'

Settling lower-court cases a formality, attorney says

Jack Wagoner, the Little Rock attorney who filed the federal case in Arkansas on behalf of gay couples and was co-counsel in the case before the Arkansas Supreme Court.
Jack Wagoner, the Little Rock attorney who filed the federal case in Arkansas on behalf of gay couples and was co-counsel in the case before the Arkansas Supreme Court.

The U.S. Supreme Court's ruling on same-sex marriage Friday settled pending state and federal challenges to Arkansas' ban on such unions, attorneys said.

Although higher courts technically have to issue mandates to lower courts before the lower courts can act, that wasn't necessary in the same-sex marriage cases "because the rights have been established" by the Supreme Court's decision, said Jack Wagoner, the Little Rock attorney who filed the federal case in Arkansas on behalf of gay couples and was co-counsel in the case before the Arkansas Supreme Court.

"It is what it is," he said.

Noting that Pulaski County Circuit Clerk Larry Crane had already begun issuing marriage licenses an hour after the U.S. Supreme Court ruling, Wagoner said he believes that anyone in Arkansas -- or elsewhere -- who is denied a same-sex marriage license after Friday's ruling would see that denial thrown out in short order.

John DiPippa, an expert on constitutional law who is dean emeritus, and professor of law and public policy at the W.H. Bowen School of Law in Little Rock, said much the same thing.

There is "not really" any reason for anyone to wait for a formality from the Arkansas Supreme Court or an Arkansas federal judge to act on the U.S. Supreme Court's ruling, he said.

"In a very strict, technical sense, the decision today only applies to the plaintiffs in those cases, but as a general principle, it applies across the country," DiPippa said. "So, no, people don't really have to wait for either court to do something, because they have a right. ... If they are denied that right, they have an easy lawsuit."

Wagoner spoke to a reporter from the airport in San Francisco, where his American Airlines flight had just landed.

He said he had been online, checking for a potential announcement of the U.S. Supreme Court decision, when a flight attendant announced the ruling over the airplane's intercom, and "everybody cheered."

"Of course, I was flying to San Francisco," Wagoner said. "If I'd been on my way to Little Rock, I'm not sure the reaction would have been the same."

Wagoner, who was flying to a Grateful Dead concert, said he had communicated with some of his clients in the state and federal cases out of Arkansas via Facebook, but hadn't yet talked to any of them personally.

"It's exciting. It's a historic day," he said.

He said he had "pretty much" expected the ruling because of the high court's actions leading up to it, that for months have had the effect of opening doors to same-sex couples seeking marriage licenses in the majority of states. Arkansas was among 14 states that left the bans intact.

While the case before the Arkansas Supreme Court has been stalled for months "because it's a political hot potato," Wagoner said he was confident that the court would issue an opinion in the Kendall Wright v. Smith case at some point Friday.

Arkansas' high court issued a one-paragraph order at 5:10 p.m. Friday, dismissing the state's appeal of Pulaski County Circuit Judge Chris Piazza's May 9, 2014, ruling that declared the state's ban unconstitutional.

"In light of the Supreme Court's decision in Obergefell v. Hodges, holding that such marriage laws violate the Fourteenth Amendment to the United States Constitution, there are no remaining justiciable issues in this appeal, and the appeal is moot," the unsigned order said, adding, "Appeal dismissed."

The 8th U.S. Circuit Court of Appeals in St. Louis, which technically has had jurisdiction in the federal case in Arkansas since the state appealed in December, didn't immediately affirm U.S. District Judge Kristine Baker's November ruling that declared the state's same-sex marriage ban unconstitutional; nor did the court otherwise issue direction to Baker and other judges in Missouri, Nebraska and South Dakota, whose same-sex marriage disputes were under joint consideration.

That didn't surprise DiPippa.

While federal appeals courts and district courts have limited geographical jurisdiction, "when the U.S. Supreme Court speaks, it speaks as a nationwide rule," he said.

If people had to wait for the lower courts to rule before receiving the benefit of a new right, "they would be suffering a second injury," he said.

Arkansas' Supreme Court heard oral arguments in the state case in November, but hadn't ruled in the case by the time two new justices joined the court in January.

Leslie Rutledge, who became the new Arkansas attorney general in January, requested a second round of oral arguments so that the new justices could participate, which led to a dilemma about who should decide the case -- the former lineup of justices, who included a judge specially appointed by then-Gov. Mike Beebe to hear the case, or the new lineup of justices.

Just last month, after creating a separate case that required Gov. Asa Hutchinson's appointment of three special justices to decide who would decide the case, the current roster of judges was set to rule, without a need for additional oral arguments.

Seventy-five percent of voters passed a state constitutional amendment in 2004 declaring marriage to be between one man and one woman, but with the U.S. Supreme Court signaling in recent months that it would soon legitimize same-sex marriage in all states, reflecting the general mood of the nation, the elected state justices made no movement in the case after formally labeling it "submitted" on June 10.

The state's high court usually releases opinions on Thursday mornings, but clerk Stacey Pectol said Friday that it has been known to issue opinions on other days when an issue is timely, such as during an election. She also said that while the court's annual session was winding down, it wasn't over.

A clerk at the 8th Circuit in St. Louis said that if the appeals court was planning on issuing an order Friday in the joint appeal of the same-sex marriage cases pending before it, it likely would have done so in the morning, because opinions are usually posted by about 10 a.m. But those opinions are prepared ahead of time by the three-judge panels assigned to them, meaning Friday's Supreme Court ruling didn't leave enough time for the 8th Circuit panel to act.

Wagoner and DiPippa indicated that it didn't matter anyway, although Wagoner said he would soon ask, if necessary, to have the stays on Piazza's and Baker's rulings lifted.

SundayMonday on 06/28/2015

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