State's same-sex marriage dispute now a clash of courts, experts say

As a federal judge considers whether to lift a stay on her ruling outlawing Arkansas' bans on same-sex marriage, creating the potential for a second round of same-sex marriages until the issue is decided nationally, the Arkansas Supreme Court still hasn't ruled on an appeal of a similar state-court ruling.

Although some observers think the state case is irrelevant at this point, given that federal law is the law of the land and the U.S. Supreme Court is expected to decide gay-marriage questions by late June, others say it's not that simple.

Searcy attorney Cheryl Maples, whose lawsuit in state court was the first challenging the constitutionality of the Arkansas bans, says it's important that the Arkansas Supreme Court decide the state's appeal of the ruling stemming from that lawsuit, regardless of what happens nationally.

A ruling by Pulaski County Circuit Judge Chris Piazza declared the bans unconstitutional and unenforceable under state and federal law, while the one by U.S. District Judge Kristine Baker addressed only violations of federal law.

Piazza's ruling May 9 opened the door for gay couples to marry in the state. Before his ruling was stayed by the Arkansas Supreme Court on May 16, about 600 same-sex couples were married in various Arkansas counties. That case is pending before the state Supreme Court, which heard oral arguments in November. Currently, the court is considering Attorney General Leslie Rutledge's motion for a second round of oral arguments, which plaintiffs oppose.

Baker immediately stayed her Nov. 25 ruling, pending review by the 8th U.S. Circuit Court of Appeals, but is now considering a motion to lift the stay. She has ordered the state to respond to that motion by Monday.

John DiPippa, dean emeritus and professor of law and public policy at the W.H. Bowen School of Law at the University of Arkansas at Little Rock, agrees with Maples.

"Courts don't normally wait for other courts to rule," DiPippa said Friday from his desk at the law school campus. "Your obligation is to discharge the responsibility in front of you. They have to address this issue before them."

If the issue is left unresolved by the Arkansas Supreme Court, DiPippa said, it could create "a lot of confusion and chaos" further down the line.

Both the state and federal lawsuits were filed shortly after the U.S. Supreme Court's June 26, 2013, ruling that struck down a portion of the federal Defense of Marriage Act and extended federal recognition of marriage to legally wed same-sex couples.

The State Question

Despite the similarity of the two lawsuits, there is one substantive difference: only the state lawsuit addresses whether the challenged bans -- Amendment 83 to the state constitution and three sections of Arkansas law enacted in 1997 -- violate the Arkansas Constitution.

Both Baker and Piazza have ruled that the bans violate the due-process and equal-protection provisions of the 14th Amendment to the U.S. Constitution, but only Piazza ruled that the bans violate the Arkansas Constitution as well.

State courts, DiPippa explained, are courts of "general jurisdiction" and can decide state and federal questions. Federal courts, on the other hand, are of "limited jurisdiction" and can decide only federal questions, except in cases involving multiple states.

While federal courts can declare that something violates the state's interpretation of its constitution, only the state courts can interpret its constitution, DiPippa said.

"The state-law claim can really only be authoritatively declared in a state court," DiPippa said. The Arkansas Supreme Court, he said, "is the only court that can really tell us what the state constitution means."

Maples said that's why she wants the state's high court to decide whether, as Piazza found, the bans violate Article 2, Section 29 of the Arkansas Constitution. Article 2 is the document's Declaration of Rights, and Section 29 declares that all rights outlined in the constitution "shall forever remain inviolate."

The determination would affect more than the same-sex marriage issue, she said. It would affect any future attempts to amend the state constitution's Bill of Rights by a vote of the people.

As an example, she said that if voters passed a referendum changing the constitution to say that everyone in the state must be a Baptist, they would be altering the Declaration of Rights because it says that the rights outlined within, including freedom of religion, can't be changed.

The Arkansas Supreme Court would then have to decide "whether the majority, by any action, can change our inalienable rights by amending the constitution," Maples said.

By upholding Piazza's ruling declaring that the basic rights embedded in the state constitution cannot be obliterated by an amendment, the court would fend off future attempts to interfere with the state's Bill of Rights, she said.

The Federal Question

Conversely, DiPippa said, if the Arkansas Supreme Court should reverse Piazza and declare that the state bans on same-sex marriage comply with the Arkansas Constitution, and the 8th U.S. Circuit Court of Appeals should uphold Baker's ruling, the U.S. Supreme Court would be faced with a dilemma.

"You'd have two sovereign courts" in disagreement, DiPippa said. "Which one controls? Most legal scholars say that until the U.S. Supreme Court settles it, the state Supreme Court controls."

"Arguably," DiPippa said, "the defendants in the Baker case would have to listen to her, but nobody else would."

The defendants are Pulaski County Clerk Larry Crane, whose office issues marriage licenses in Pulaski County only; Rutledge; and the state directors of the department of Finance and Administration and the Arkansas Teachers Retirement System. The latter two are defendants because the plaintiffs want them to permit same-sex couples to file joint tax returns and receive state retirement benefits through same-sex spouses.

So theoretically, only Pulaski County, out of the state's 75 counties, could issue same-sex marriage licenses. The remaining counties would have to adhere to the Arkansas Supreme Court's decision.

While the U.S. Supreme Court has scheduled oral arguments for April in cases decided by the 6th U.S. Circuit Court of Appeals, and plans to issue a ruling by late June, DiPippa said the 8th Circuit wouldn't necessarily be wasting its time by hearing oral arguments in the Arkansas federal case, along with cases from other states within the circuit, in the week of May 11, as scheduled.

He said that just as the Arkansas Supreme Court is to decide the case pending before it, the 8th Circuit must address the cases before it. He noted there is always a possibility that the U.S. Supreme Court will be unable to rule in June, as expected, for any number of unforeseen reasons. The court could decline to rule because it turned out that the cases didn't present the right issues, or perhaps one justice could become ill or die, potentially leaving a 4-4 vote, which cannot stand.

All said, Little Rock attorney Jack Wagoner, who filed the federal lawsuit in Arkansas and is co-counsel on the state suit, said last week that he doesn't expect the Arkansas Supreme Court to rule on the state case, since the U.S. Supreme Court has indicated it will rule by the end of June.

"It's looking less likely that the avenue for the same-sex marriage resolution is going to be through the state court system," Wagoner said.

Referring to Amendment 83, he said, "That amendment is out if the federal court says it is. The Arkansas Supreme Court doesn't have to address it. ... It all dovetails back to does it violate the federal Constitution?"

"It's going to get resolved one way or another in the next three or four months," Wagoner said, noting that "it is extremely unlikely" that Baker or other federal judges who have deemed the bans unconstitutional will get reversed.

A third case regarding same-sex marriage also is pending in Pulaski County Circuit Court. On Feb. 13, Maples filed suit against state officials on behalf of two gay couples who were married May 12 in Pulaski County and who say they are being denied marital benefits. The state has not yet responded to the suit, which has been assigned to Circuit Judge Alice Gray.

SundayMonday on 03/01/2015

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