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Arkansas Same Sex Marriage OK, Will State Supreme Court Grant Stay?

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By Gabriella Khorasanee, JD on May 16, 2014 1:01 PM

One week ago, Arkansas became the 22nd state in the United States to give the green light to same sex marriage, says Bloomberg. On Monday, same sex couples waited in line outside county court houses to obtain marriage licenses. But, some counties didn't issue licenses citing confusion.

As parties on both sides of the issue scramble for clarity, one question now remains: will the court's decision be stayed?

Arkansas Ban on Same Sex Marriage

Arkansas had both a state law, and amendment to its constitution banning same sex marriage. Arkansas Act 144 of 1997 prohibits same sex marriage, as well as the recognition of lawful same sex marriages conducted in other states. Amendment 83 defines marriage as a union of a man and woman, and does not recognize the legal status of same sex couples. Same sex couples -- twelve seeking marriage in Arkansas and eight married in other states -- challenged Act 144 and Amendment 83 citing violations of the Arkansas and U.S. Constitutions.

Arkansas' Ban is Unconstitutional

Circuit Court Judge Christopher Charles Piazza looked at various lines of cases and found that the Arkansas law and amendment violated the Equal Protection Clause and the right to privacy. Though the state raised issues such as the referendum process (which adopted the amendment), tradition, procreation and the protection of children, the court found that, "None of these reasons provide a rational basis for adopting the amendment." Also, speaking on evolving traditional notions of marriage, the court relied on the Supreme Court's decision in Loving v. Virginia, which invalidated a miscegenation statute, stating: "Our freedoms are often acquired slowly, but our country has evolved as a beacon of liberty in what is sometimes a dark world. These freedoms include a right to privacy."

Will the Court Grant a Stay?

Over the weekend, Arkansas State Attorney General filed papers seeking a stay of Judge Piazza's ruling "so as not to create confusion or uncertainty about the law," reports Bloomberg. On Tuesday, plaintiffs filed papers arguing against a stay, reports Arkansas Matters. But that's not the end of it.

On Wednesday, the Arkansas Supreme Court declined to grant a stay because the circuit judge's order omitted a ruling on a "law banning county clerks from selling marriage licenses to same-sex couples," reports the Los Angeles Times. Yesterday, the judge clarified his ruling and stated that "the law pertaining the county clerks had been 'inadvertently omitted as clerical error' in his first ruling,'" says the LA Times. He also denied the stay because the couples who initiated the legal action would suffer irreparable harm.

The state is still seeking a stay, and pursuing an appeal.

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