County clerks and attorneys had their conference call with Association of Arkansas Counties officials this afternoon about complying with Circuit Judge Chris Piazza’s ruling overturning the state Constitution and 1997 statutory ban on same-sex marriage. They’re hoping for further court guidance and, ideally, a stay of Piazza’s ruling. Otherwise, confusion and unhappy customers seem likely to be the order in Arkansas when business resumes Monday morning.
Jason Owens, who represented several counties in the lawsuit, said he expected a request for a stay would be filed Monday along with an immediate notice of an appeal of the order. He also said he’d ask Judge Piazza for clarification of his ruling.
Owens said Piazza’s order failed to address a number of other statutes that refer to marriage, including a “definitional” statute that defines it as between a man and woman. Owens said he knew the judge intended to eliminate that requirement, but complications remain as long as the other statutes remain on the books. They include man-woman requirements in statutes dealing with covenant marriage and under-age marriages. And Owens noted the judge hadn’t ordered the counties to do anything, though injunctive guidance had been sought.
A large issue is the fact that most counties prepare marriage licenses with software that provides blanks for a bride and ga room and print certificates that have a Mr. and Mrs. on the form.
Pulaski County has already arranged with its software provider for an update and will be prepared to issue gender-netural certificates Monday morning. But other counties are not ready. County association officials urged them to get ready, in the event a stay isn’t granted or even if it is but the ruling is eventually upheld.
Jamie Correia, the clerk for the western district of Carroll County, joined the conference call (I listened in) to describe the confusion at her courthouse this morning when dozens of couples showed up to get licenses. Her office is the only one in the state that opens on Saturdays to issue licenses. Correia was out of town. At first, the office didn’t open. After early confusion and consultation with lawyers, she said she decided to open the office to issue licenses. About 15 were issued by office closing time at 1 p.m., with many people still in line. Correia said her staff asked the couple which person wanted to be listed as bride or groom, whether the couple was male or female, and filled the form out as requested.
“it was crazy,” she said. “We had to call the Eureka Springs police department to help my ladies because it got out of hand.”
Some feathers seem likely to be ruffled Monday morning. A number of clerks already have received inquiries from same-sex couples hoping to be married. But the consensus of the session — led by opinions from David Hogue in Conway, Ralph Ohm in Hot Springs and George Spence in Bentonville — was that the lack of proper forms was an adequate ground to refuse issuance of a license to a same-sex couple because otherwise the clerks would be issuing an incorrect document that could ultimately cause legal problems. Ohm suggested counties shouldn’t hurry the process of getting proper forms ready.
All are hoping to get a stay to call a halt to procedural confusion at least for the time being. Several said they didn’t expect Piazza to issue a stay, however, because they said he’d been requested to do so at a hearing in advance of his ruling. The attorney general and others will then turn to the Supreme Court. They’ll be prepared to act quickly, but it was estimated that process could take up to three days.
Spence, the Benton County attorney, said that as a non-defendant in the case he didn’t view the ruling as binding on him. Others seemed to agree with that.
But Spence also criticized a software excuse.
“If the judge’s order is not stayed, you can do a marriage license on a piece of paper with a typewriter. I don’t really think much of the idea of saying our software won’t get it done.” The clerks have an obligation to issue licenses and they did that for years without computers, he said.
But he said “Amendment 83 is still the law in Benton County. I will not resist if ordered. But for now I’ll follow Amendment 83.”
Lawyers had one other piece of advice in the conference call dealing with a question from JPs, many of whom perform marriages. They should either marry anyone who presents them with a marriage certificate, or do no marriage at all. As civil officials, they risk liability by discriminating between same-sex and opposite-sex couples.
The call included frequent complaints about Piazza’s decision to release the ruling at the close of business Friday and without a breathing period to gear up for the change. (This made me wonder how much breathing space county clerks were given in the civil rights days when barriers to voting by black people were knocked down.)
Seven counties were named defendants in the suit — Pulaski, White, Lonoke, Conway, Saline, Washington and Faulkner. Faulkner was dropped after it raised a variety of objections that threatened to delay the progress of the case.
Owens and Chris Villines, executive director of the Association, urged clerks to confer with their county attorneys on a course of action. Clerks were advised that they faced little risk of liability if they refused to issue licenses if they weren’t named parties and weren’t yet prepared to issue licenses with appropriate labels. But the officials also conceded that there was virtually no downside in issuing a license that later became void if the Supreme Court overturns Piazza’s order. If any clerk plans to obey Piazza’s ruling other than Pulaski’s Larry Crane, no one spoke up during the call.
Lawyers were reluctant to predict an outcome of the case, but Hogue, of Faulkner County, seemed optimistic that Piazza would be overturned. He said the federal Windsor ruling reserved state sovereignty on marriage. Others said they saw a clear national trend that ultimately seemed destined to deliver marriage rights to same-sex couples.