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Arkansas Trial Court Orders State Recognition of “Window Period” Marriages

Posted on: June 10th, 2015 by Art Leonard No Comments

An Arkansas trial judge ordered the state on June 9 to recognize and extend all rights and privileges of marriage to more than 500 same-sex couples who married during May 2014 while the state sought a stay of a trial judge’s order striking down Arkansas’s same-sex marriage ban.

On May 9, 2014, Arkansas Circuit Judge Chris Piazza ruled in Wright v. State of Arkansas, 60CV-13-2662, that the state’s ban on same-sex marriage was unconstitutional, granting summary judgment to the plaintiffs, and specifically holding unconstitutional Amendment 83 (the Arkansas marriage amendment) and Act 144 of 1997 (the statute defining marriage in Arkansas as between a man and a woman).  While the state sought a stay from the Arkansas Supreme Court, same-sex couples began to obtain marriage licenses and get married pursuant to Judge Piazza’s decision.

Counsel for plaintiffs then brought to the judge’s attention that his order did not specifically mention all of the relevant statutes, and on May 15 he sent a letter to all counsel advising them that he was filing a new order clarifying the May 9 opinion and making clear that Act 146 of 1997, which specifically forbids issuing marriage licenses to or recognizing the marriages of same-sex couples, is also unconstitutional.  This new order was issued nunc pro tunc, meaning that it was intended to relate back to the May 9 decision, in order to protect the reliance interests of those who had married after the May 9 decision was announced.  On May 16, 2014, the Arkansas Supreme Court stayed Judge Piazza’s decision pending appeal.  The appeal was argued later in 2014, but changes in membership of the Arkansas Supreme Court  after the argument led to a period of delay and confusion in figuring out which judges should participate in deciding the appeal.  Ultimately this confusion – apparently to a large extent manufactured by some members of the court to avoid ruling on the merits – may delay things until after the U.S. Supreme Court issues its decision in Obergefell v. Hodges, obviating the need for the timorous Arkansas supreme court justices to have to rule in this case.  Also, during 2014 a federal district court in Arkansas issued a similar decision striking down the state’s marriage ban that was immediately stayed pending appeal, and the U.S. Court of Appeals for the 8th Circuit put the appeal “on hold” pending the Supreme Court’s ruling in Obergefell.

During the May 9-May 16 “window period” before Judge Piazza’s order was stayed, hundreds of same-sex couples married in Arkansas.  However, the state refused to recognize those marriages as valid.  This prompted a new lawsuit on behalf of two same-sex couples who married on May 12, but who were being denied the right to file joint tax returns and, in one case, to enroll a spouse in a state employee health insurance benefit program.  The state’s argument was that these marriages were invalid ab initio because Judge Piazza lacked the power to make his clarifying opinion retroactive.  According to the state, since Judge Piazza’s order was stayed, Act 146 remained in effect, precluding the state from recognizing these marriages.

On June 9, 2015, Circuit Judge Wendell Lee Griffen decisively rejected the state’s argument in Frazier-Henson v. Walther, No. CV-15-569 (Arkansas, Pulaski Co. Cir. Ct.).  Judge Griffen found that Rule 60 of the Arkansas Rules of Civil Procedure specifically authorizes judges to “correct errors or mistakes” or “to prevent the miscarriage of justice” by modifying judgments that they have issued, including “errors therein arising from oversight or omission.”  It was clear in this case that Judge Piazza’s omission of Act 146 from his original opinion was an oversight, as reflected in the overall opinion granting summary judgment to the plaintiffs and holding unconstitutional the state’s ban on same-sex marriage.  Further, Judge Griffen opined that it would constitute a miscarriage of justice not to accord recognition to the marriages contracted during the window period.

Judge Griffen used harsh language to characterize the position of defendant Larry Walther, Director of the Arkansas Department of Finance and Administration.  “With shameless disrespect for fundamental fairness and equality, Director Walther insists on treating the marriages of same-sex couples who received marriage licenses between May 9 and May 15 as ‘void from inception as a matter of law’.  Meanwhile, Director Walther asserts that ‘heterosexual marriages performed in the State of Arkansas between May 10, 2014 and May 16, 2014 are valid’.  This Court categorically rejects Director Walther’s manifestly inaccurate and tortured misinterpretation of Rule 60 of the Arkansas Rules of Civil Procedure.  If the position Director Walther asserts would not produce a ‘miscarriage of justice’ as that term is understood within the meaning of Rule 60(a), the words ‘miscarriage’ and ‘Justice’ have no meaning.”  The court ordered Walther to recognize all of the marriages contracted during the window period, to allow joint tax filings by those couples, and to allow same-sex spouses married during the window period to enroll in the state’s employee benefits program.

Associated Press reported that Arkansas Attorney General Leslie Rutledge did not immediately state whether she would seek a stay of Griffen’s ruling.   She asserted, “These marriages do not fall within the state’s definition of marriage as between one man and one woman.  I am evaluating the ruling and will determine the best path forward to protect the state’s interest.”

Judge Griffen was among the trial judges who officiated same-sex marriages during the window period, according to the AP report.

Arkansas attorney Cheryl K. Maples represents the plaintiffs.