WILL SHE OR WON'T SHE: Washington County Clerk Becky Lewallen has legal advice to issue marriage license and Republican Party pressure to disobey a court order.

UPDATE: Washington County is issuing same-sex licenses this morning, six as of 9:40 a.m.  Conway County also said it would issue licenses.

Slate writes — and dozens if not hundreds of media outlets are writing — about hundreds of couples getting marriage licenses under Judge Chris Piazza’s marriage equality ruling. 


Why is any of this important, aside from the obvious cute factor? Because the Arkansas Supreme Court may be poised to halt gay marriages while the state appeals the initial ruling—leaving the gay couples who have already wed in legal limbo. When a similar situation occurred in Utah, the already married couples became facts on the ground, putting a powerful face to the gay marriage fight and lending urgency to a speedy, pro-equality ruling. It’s simple enough to rule against gay marriage as an abstract principle. But when that ruling is going to nullify the marriages of thousands of loving couples, a moral-minded judge might balk. Besides, many of these couples have kids, and judges can’t ignore—as Justice Anthony Kennedy phrased it during Prop 8 oral arguments—the fact that these children “want their parents to have full recognition and full status.”

Yes, and so, too, there’s some witness value in Arkansas today when the red-hot Republican contingent, joined by a scattering of Democratic legislators, will pass a resolution pledging fealty to Arkansas’s constitutional discrimination against gay people. The court is political. The yammering will factor in coming rulings.

But let’s talk for a small second about the rule of law that blowhard Sen. Jason Rapert waves about. That same constitution he holds dear imbues judges with the power to review constitutionality of laws and strike them down when they see conflicts.


Judge Piazza has done this. And, yet, of the six counties specifically named defendants in this legal action, so far only one — Pulaski — is complying with the terms of what is now a final order, including an injunction.

In Washington County comes word that, despite sound legal advice, the Republican county clerk, Becky Lewallen may follow advice of Republicans to ignore the law until the Supreme Court settles the matter. You do not have such options under the law. Under the rule of law, you obey a judge’s order until it is stayed or overturned. That could happen in a few days. It might not ever happen. Parties in a lawsuit don’t get to unilaterally decide to follow a lower court order until they hear from a higher court — until the higher court gives them the ability to wait.


Rapert talking about upholding the law? What a crock.

Clerk Lewallen yesterday first said she was uncertain, then said she would issue licenses and then, according to the Democrat-Gazette, indicated she was uncertain. (This after conferring with Republicans.) What part of the words “judge’s order” doesn’t she understand?

Realistically, Lewallen and clerks in Saline, White, Conway and Lonoke counties can drag their feet, at least for a few days, on complying with the Piazza order in hopes that the Supreme Court will issue a stay quickly. But at some point contempt power — which could include jailing the recalcitrant — would come into play.