Analysis: Uncertainty surrounds Arkansas gay marriage case

Little Rock, Ark. (AP) — The Arkansas Supreme Court's biggest piece of unfinished business as it wraps up 2014 — whether the state's ban on same-sex marriage is constitutional — is the one that will have the most far-reaching effects for the state. Punting the issue until next year could introduce a whole new set of complications into the already thorny issue.

With less than two weeks left in the year, justices have yet to issue a decision about the 2004 constitutional amendment and earlier state law defining marriage as between a man and a woman. And despite agreeing to fast-track the case, there's no guarantee the court will weigh in before 2015.

Justices are considering whether Pulaski County Circuit Judge Chris Piazza was right to strike down the ban as unconstitutional. More than 500 same-sex couples were issued marriage licenses before the Supreme Court suspended Piazza's decision.

Waiting until next year could change the dynamics of the case and raises the possibility of a prolonged fight over gay marriage in Arkansas. It could also upend a legislative session that was expected to focus on economic issues, not social ones.

As the court inches closer to a decision in the case, here are the unanswered questions that remain:

—Who will decide the case?: Waiting until next year would likely mean at least one new judge taking part in the ruling. The new court will be sworn in on Jan. 6, with Robin Wynne replacing outgoing Justice Donald Corbin. Corbin has been viewed as a reliable vote for striking down the marriage ban after voicing skepticism at the state's argument that a constitutional amendment can't be unconstitutional. Special Justice Robert McCorkindale, who was appointed to sit in after outgoing Justice Cliff Hoofman recused, is expected to still participate in the case even if it stretches into the next court's term. Rhonda Wood is replacing Hoofman on the court.

—How far will the fight go?: This depends on how the court rules and what basis it uses. Either way the court rules, the next immediate step for the side that loses is to petition for a rehearing within 18 calendar days of the decision. A response to that request is due within seven days. This makes it more and more likely that outgoing Attorney General Dustin McDaniel will be handing the case off to incoming Republican Attorney General Leslie Rutledge. McDaniel has said he personally supports legalizinggay marriage, but would continue defending the ban in court. Rutledge says she opposes gay marriage and has vowed to defend the ban.

Time is already running out for McDaniel to appeal U.S. District Judge Kristine Baker's decision that the ban violates the U.S. Constitution. McDaniel has said he's waiting for the state Supreme Court's ruling before making a decision.

—Will gay marriages resume in Arkansas?: That depends on how the court rules. When Baker struck down the ban last month, she suspended her decision as the state weighed whether to appeal to the Eighth U.S. Circuit Court of Appeals. A decision isn't considered final under Supreme Court rules until a mandate is issued. That usually is 18 calendar days after the ruling, though the court can choose to issue its mandate immediately. In other words, a ruling striking down the ban doesn't necessarily meangay marriages will continue immediately.

— What's the fallout?: A decision striking down Arkansas' marriage ban will have huge implications despite the timing, but it could change the dynamics of the legislative session set to begin Jan. 12. Some Republican lawmakers are already expected to push for a constitutional amendment that would allow the recall of judges, an idea that Little Rock businessman Jackson T. Stephens Jr. floated after the court kept a minimum wage increase on the ballot. He'd likely get some help from religious conservatives to put a recall measure on the 2016 ballot if the marriage ban is struck.

By Andrew DeMillo, Associated Press. Copyright 2014 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

The Gayly – December 20, 2014 @ 10:30am