Logan County Clerk Peggy Fitzjurls said Monday her office will not issue marriage licences to same-sex couples after a Pulaski County circuit judge on Friday declared Arkansas’ ban on same-sex marriage unconstitutional.
“We are not going to issue those licneses at this time,” Fitzjurls said. “We are awaiting clarification on the ruling from Pulaski County.”
Meanwhile, other county clerks have issued licenses and same-sex marriages have been performed in several counties since the ruling.
Judge Chris Piazza issued the ruling in a lawsuit filed by several same-sex couples. He did not stay his ruling, which an attorney for the plaintiffs said apparently clears the way for same-sex couples to marry. The state attorney general’s office said it would appeal the ruling to the state Supreme Court and would seek a stay.
In a 13-page, single-spaced order, Piazza said Arkansas’ constitutional amendment defining marriage as between a man and a woman and a state law barring same-sex marriages from being performed or recognized violate inalienable rights guaranteed under both the federal and state constitutions.
“Arkansas’ marriage laws discriminate against same-sex couples in violation of the Equal Protection Clause because they do not advance any conceivable legitimate state interest necessary to support even a rational-basis review,” Piazza said in the order.
The judge said the Arkansas Constitution states that “all men are created equally free and independent,” but that in passing Amendment 83, voters “singled out same-sex couples for the purpose of disparate treatment. This is an unconstitutional attempt to narrow the definition of equality.”
Amendment 83 passed in 2004 with 75 percent of the vote, a fact often cited by its supporters. Piazza wrote that “the fact that Amendment 83 was popular with voters does not protect it from constitutional scrutiny” and that the U.S. Constitution guarantees rights that cannot be submitted to a vote.
He rejected the argument that the state has an interest in seeing that children are raised by opposite-sex couples rather than same-sex couples, noting that banning same-sex marriage does not prohibit gays from having children.
“The only effect the bans have on children is harming those children of same-sex couples who are denied the protection and stability of parents who are legally married,” Piazza wrote in the order.
The judge also said that excluding same-sex couples from marriage with no rational basis violates their right to privacy. He noted that the Arkansas Supreme Court cited a right to privacy in rulings that struck down a state law banning sodomy and a state law banning adoption by unmarried, cohabiting couples.
Piazza cited several historic cases in his order, including U.S. v. Windsor, in which the U.S. Supreme Court last year struck down a section of the Defense of Marriage Act defining marriage as between a man and a woman, and Loving v. Virginia, in which the U.S. Supreme Court in 1967 struck down Virginia’s ban on interracial marriage.
Aaron Sadler, spokesman for Attorney General Dustin McDaniel, said Friday, “We respect the court’s decision, but, in keeping with the attorney general’s obligation to defend the state constitution, we will appeal. We will request that Judge Piazza issue a stay of his ruling so as not to create confusion or uncertainty about the law while the Supreme Court considers the matter.”
McDaniel recently said he personally supports gay marriage but will continue to defend the same-sex marriage ban as attorney general.
Since the U.S. Supreme Court issued its U.S. v. Windsor ruling in June, federal judges have struck down same-sex marriage bans in Utah, Oklahoma, Virginia, Texas and Michigan. Those rulings have been stayed pending appeals.
(The Arkansas News Bureau in Little Rock contributed information used in this report.)