8th Circuit: Judge right to ax gay-nuptials bans

The 8th U.S. Circuit Court of Appeals in St. Louis put an end to Arkansas' federal same-sex marriage case Tuesday by affirming U.S. District Judge Kristine Baker's Nov. 25 ruling that declared state bans on such marriages unconstitutional.

Little Rock attorney Jack Wagoner, who filed the case on behalf of two same-sex couples, said he was pleased with the way the 8th Circuit put an end to the state's appeal of Baker's ruling in light of a June 26 U.S. Supreme Court ruling declaring such bans unconstitutional.

"I wish the Arkansas Supreme Court had done the same thing," he said, citing the 8th Circuit's reasoning that a ruling in another case doesn't automatically make the issues in the Arkansas case moot.

But Attorney General Leslie Rutledge said she was "disappointed by the 8th Circuit's decision today not to reverse the District Court and dismiss the complaint in this case." She said that in light of the U.S. Supreme Court ruling, "there was no reason to affirm the District Court's decision as this case is now moot."

There were two lawsuits filed in Arkansas challenging Amendment 83 to the state constitution and three sections of Arkansas Code: 9-11-107, 9-11-109 and 9-11-208, all of which prohibited same-sex marriage. In the federal case, Baker declared that the state bans violated the U.S. Constitution, but she didn't rule on whether they violated the state constitution.

In the other lawsuit, the Arkansas Supreme Court never ruled on the state's appeal of Pulaski County Circuit Judge Chris Piazza's May 9, 2014, ruling declaring the state bans unconstitutional under both the state and federal constitutions. Instead, the state's high court issued a terse order dismissing the appeal on the same day the U.S. Supreme Court declared same-sex marriage legal across the land.

That has technically left the question of whether the Arkansas bans violate the state constitution unanswered, though some would say it doesn't matter since the U.S. Supreme Court decided the issue for the entire country with its ruling in the case Obergefell v. Hodges.

In response to the 8th Circuit's request for input on how it should formally resolve the appeal in Jernigan v. Crane, Arkansas' federal case, in light of the Supreme Court ruling, Wagoner argued in favor of affirming the District Court's ruling.

The state, in contrast, argued that the appeal should be vacated and sent back to Baker with an order to dismiss it, arguing that the Supreme Court ruling made the issue moot.

A three-judge panel of the 8th Circuit addressed that argument in its five-page opinion Tuesday, two pages of which were taken up with naming the parties and a multitude of other parties that had filed friend-of-the-court briefs.

"Arkansas suggests that Obergefell moots this case," the judges wrote. But, they said, the Obergefell ruling "invalidated laws in Michigan, Kentucky, Ohio and Tennessee -- not Arkansas."

The panel noted that the state has acknowledged that the U.S. Supreme Court decision "did not address many of the claims asserted by [the plaintiffs] and addressed by the district court in this case," referring to the Arkansas federal case.

The panel also noted that the state of Arkansas hasn't yet repealed any of the challenged laws.

Although the state has vowed to follow the law dictated by the U.S. Supreme Court, "Arkansas's general assurances of compliance with Obergefell also do not moot the case," the panel said.

The judges noted that if Baker's injunction outlawing the bans ever needs to be reinforced, Baker is in a better position than the appeals court to address the matter, since the appeals court is limited in its review of district court injunctions.

Wagoner said the state case sought specific remedies, such as instructing state officials not to enforce the bans, while the 8th Circuit case "only applies directly to the defendants named in that case," who are Pulaski County Clerk Larry Crane, the attorney general, the director of the state Department of Finance and Administration, and the executive director of the Arkansas Teachers Retirement System.

Because the Arkansas Supreme Court never considered questions specific to the Arkansas Constitution, Wagoner said that if a county clerk refuses to issue same-sex marriage licenses, the only way to enforce the clerk's duty to comply is to file a new lawsuit.

County clerks across the state began issuing marriage licenses to gay couples on the day of the U.S. Supreme Court ruling, with Rutledge instructing them that the law requires them to do so.

The Van Buren County clerk, Pam Bradford, initially refused and urged other county clerks to join her in refusing to grant same-sex marriage licenses. The next day, after talking with an attorney who represents counties, she changed her mind and agreed to follow the law. The Cleburne County clerk, Dana Guffey, said she would resign before issuing same-sex licenses, citing her religious convictions.

Metro on 08/12/2015