Friday’s decision by an Arkansas state judge overturning the state’s ban on same-sex marriage seemed to make the law unenforceable across the state. Since then, five different counties have issued marriage licenses to same-sex couples, but as of Tuesday afternoon, only two counties (Pulaski and Washington) are continuing to issue them. How these different counties made their decisions — and changed their minds — demonstrates how murky the legal territory is in the wake of Friday’s ruling.
The county clerks weighed these decisions during a conference call organized on Saturday by the Association of Arkansas Counties (AAC). Scott Perkins, Communications Director for AAC, told ThinkProgress that the organization has not taken any policy position on the issue of same-sex couples marrying, but that they are “encouraging a stay to allow county clerks to handle this properly.”
There are a number of reasons why Friday’s decision has created confusion for the clerks. Jason Owens, one of the lawyers who represented the six counties named in the marriage suit, told the Arkansas times that there are various statutes written into the law that weren’t mentioned in Friday’s decision that continue to limit marriage to a man and a woman. Owens acknowledged that Circuit Judge Chris Piazza clearly intended to address the matter completely, but the loose ends in the law leave questions for how county clerks should handle the situation.
Perkins also pointed out to ThinkProgress that Piazza’s decision, despite overturning the ban on same-sex marriage, did not include an injunction ordering counties not to enforce it. Thus, the six county clerks named in the suit were left “unclear if they were being instructed to issue same-sex licenses.” Moreover, Arkansas’ other 69 counties were left similarly in doubt as to whether the decision applies statewide.
One additional concern is that many of the clerks use software that has gender-specific language on the marriage forms, such as “bride,” “groom,” “Mr.,” and “Mrs.” If a same-sex couple were to be issued a license using such a form, it could potentially compromise the legal validity of that license. Pulaski County, which continues to offer licenses, had already arranged for its software to be updated so that it could issue gender-neutral certificates Monday morning, but other counties had not taken such steps. The AAC is helping clerks work with the various vendors they use to update their software accordingly.
Perkins told ThinkProgress that AAC’s goal it to make sure county clerks are on solid legal footing, however they choose to respond to the ruling. As they have been telling clerks, “If you choose to do it [issue licenses to same-sex couples], make sure you’re on the same page with your legal counsel, because they’ll be the ones defending you later.”
The six counties named in the suit were Pulaski, White, Lonoke, Conway, Saline, and Washington, though Faulkner had previously been named as a seventh. Carroll County, not named in the suit, but the only county office open on Saturdays, issued licenses on Saturday, but stopped doing so on Monday. Faulkner County Clerk Melinda Reynolds announced on Sunday that she would not be distributing licenses, as did several others. Until Tuesday, four counties — Saline, Marion, Pulaski, and Washington — were issuing licenses, but Saline and Marion have both stopped as well, explaining that they want to wait until a ruling is issued by the courts.
Attorney General Dustin McDaniel (D), who supports marriage equality but is continuing to defend the state’s ban, filed a request for an emergency stay from the Arkansas Supreme Court on Monday. The Court responded by allowing until noon on Tuesday for responses to the request — inherently permitting same-sex marriages to continue in the meantime. Plaintiffs noted in their response that, “If a stay is granted, such couples will once again be forced to navigate a complex, bewildering, and ever-shifting terrain of uncertainty as to whether they will be respected as a legally married couple by particular federal agencies, private employers, businesses, and particular state and local governmental actors.” The Court has not yet ruled on McDaniel’s request, and well over 200 same-sex couples have married and continue to marry in Pulaski and Washington counties.