LITTLE ROCK -- Arkansas Attorney General Leslie Rutledge has asked both a federal judge in Little Rock and the Arkansas Supreme Court to leave in place the stays they imposed months ago on rulings throwing out the state's bans on same-sex marriage.
Plaintiffs in the federal lawsuit, Jernigan v. Crane, and the state lawsuit, M. Kendall Wright v. State, requested the stays be lifted last month, arguing that since the rulings were handed down, the U.S. Supreme Court has declined to issue stays on similar rulings and has generally indicated that when it hears same-sex marriage issues this spring, it will strike down such bans.
In both Arkansas cases, the plaintiffs argued that the tendency of courts across the country to strike down such bans makes it hard to justify leaving the stays in place and allowing gay couples in the state to continue to be denied the status and related benefits they seek.
U.S. District Judge Kristine Baker imposed a stay Nov. 25, the same day she issued her ruling finding the state bans in violation of the U.S. Constitution.
The Arkansas Supreme Court imposed a stay May 16 on Pulaski County Circuit Judge Chris Piazza's May 9 ruling that the bans violated both the state and the U.S. constitutions.
In a response that Rutledge filed Monday in the federal case, 30 minutes before Baker's deadline for submitting an expedited response, Assistant Attorney General Nga Mahfouz argued that the case is no longer in Baker's jurisdiction, but rather in the jurisdiction of the 8th U.S. Circuit Court of Appeals in St. Louis, with whom the state filed its notice of appeal Dec. 23.
Although the plaintiffs cited a 1978 ruling in a federal case in Hawaii in which a district court retained jurisdiction to modify its stay of a ruling, Mahfouz said that case "involved a modification of a stay order, not a vacation of one."
She said her argument is consistent with 8th Circuit precedent stemming from more than one case.
The plaintiffs argued that Baker's stay referred to the U.S. Supreme Court's stay of a similar ruling, but that the stay in question was later dissolved after the high court refused to hear the case. Mahfouz said that case had "no relevance" in the Arkansas case.
The attorney general's office also noted that the plaintiffs "could have sought relief immediately after this Court issued the stay, but instead chose to wait almost three months," during which time oral arguments were scheduled before the 8th Circuit for the week of May 11.
"Plaintiffs' claim of a need for expedited relief is belied by their own delay in seeking a lift of the stay," Mahfouz wrote. "And their delay weakens their argument that an irreparable injury is caused by the stay's continuation until the Eighth Circuit decides this matter."
It is unclear when Baker will rule on the issue. On Monday, she began presiding over a civil-rights jury trial that is expected to last several days.
In the state's arguments to the Arkansas Supreme Court opposing a lifting of the stay on Piazza's ruling, Assistant Attorney General Colin Jorgensen said the state hasn't even had a chance to justify its request for a second round of oral arguments in the case. He noted that the deadline to provide justification is Friday.
He also noted that plaintiffs waited more than nine months to ask that the stay be lifted.
"Because of a perceived favorable action from the United States Supreme Court in marriage cases arising out of other states, [the plaintiffs] now contend that there is a sudden emergency," Jorgensen wrote last week, noting that the high court's refusal to grant stays in other cases "has no precedential value" concerning the propriety of a stay in the Arkansas case.
Jorgensen asserted that a lifting of the stay would amount to effectively ruling for the plaintiffs, since the Arkansas Supreme Court hasn't yet ruled in the case.
"This case presents both novel and substantial legal questions," he wrote. "There is a substantial public interest in having stable marriage laws and avoiding unnecessary uncertainty, confusion that will be produced by dissolving a stay and implementing the trial court's rulings that may be quickly overturned by this Court or the U.S. Supreme Court."
While the plaintiffs contend that they -- not the state -- will suffer "irreparable harm" if the stay isn't lifted, the attorney general's office disagreed. Jorgensen said that when courts declare state laws unconstitutional and prevent state officials from enforcing them, the "ordinary practice" is to suspend such injunctions from taking effect "pending appellate review." He noted that a "supermajority" of Arkansans adopted Amendment 83 to the state constitution, which Piazza deemed unconstitutional.
"If the stay is lifted, marriages could be recognized that are ultimately determined to be inconsistent with Arkansas law," Jorgensen wrote, adding that state law concerning the issue "can only be settled definitively by a ruling from this Court or the U.S. Supreme Court."
NW News on 03/03/2015