WASHINGTON — The Arkansas Supreme Court dismissed the state's appeal of the pending case over the state's same-sex marriage ban and denied a request to put the trial court order on hold for now.
The court opinion also, however, throws into question whether clerks have had authority to issue marriage licenses to same-sex couples since the May 9 trial court ruling finding the state's constitutional ban on same-sex couples' marriages unconstitutional.
Although the state appealed the trial court ruling, the plaintiffs in the case responded to the state Supreme Court that the appeal should be dismissed because it preceded the judge's final order in the case.
Because "the [trial] court's order is not final," the state Supreme Court opinion agreed with the plaintiffs in an unsigned opinion Wednesday evening, "we have no jurisdiction to hear the appeal." The appeal is dismissed "without prejudice," meaning the case can be appealed once the final order is issued.
The state also requested, whether the court heard the appeal or dismissed it as premature, to issue a stay of the trial court opinion pending any appeal "because circuit and county clerks are confused as to whether they may issue same-sex marriage licenses."
As to that, the state Supreme Court noted:
"[T]he circuit court did not issue a ruling with regard to Ark. Code Ann. Sec. 9-11-208(b) (Repl. 2009), 'License not issued to persons of the same sex.' Therefore, the circuit court's order has no effect on Ark. Code Ann. Sec. 9-11-208(b) and its prohibition against circuit and county clerks issuing same-sex marriage licenses. Accordingly, we deny the State's petition for an emergency stay of the circuit court's May 9, 2014 order."
Notably, the court — while denying the stay — also states that the current order by Circuit Court Judge Christopher Piazza has "no effect" on the state law that bars clerks from issuing marriage licenses to same-sex couples.
Plaintiffs have stated that Piazza's failure to mention the statute in his order was "an oversight" that they expect to get resolved.
[Update: This story was updated and expanded with the final update at 7:25 p.m.]
Jack Wagoner, attorney for the plaintffs, told the Arkansas Times of the statute relating to clerks not being included in Piazza's current ruling, "We'll fix that tomorrow and be back here again.... How can you find something unconstitutional but not affect a statute that would require the clerks to do something unconstitutional?"
Lawyers for the same-sex couples challenging Arkansas's marriage ban filed a request Thursday morning that the circuit judge clarify his earlier judgment to include invalidation of the state law barring clerks from issuing marriage licenses to same-sex couples.
Noting that they had included that law in their lawsuit and given that the court granted summary judgment for the plaintiffs, the plaintiffs ask the court to reissue its order to include the provision and to do so "nunc pro tunc," or so that it would be given retroactive effect to the original May 9 order date. Such a move would be intended to protect the validity of the marriages conducted since the order.
In a filing later Thursday morning, lawyers for the state did not oppose the plaintiffs' request, writing, "The State agrees that the Court’s May 9, 2014 order should be clarified, or that the Court should enter a separate order that addresses all of the claims in this case, and is therefore final and appealable."
The state did, however, request that "the Court immediately issue a stay of the Court’s May 9, 2014 order" and issue a final order in the case so that it can be appealed.