Analysis: Letters showcase split on Arkansas high court

Little Rock, Ark. (AP) — Complaints by two members of the Arkansas Supreme Court that other justices are unnecessarily delaying the case over gay marriage is the latest signal that the state is unlikely to resolve the issue before the nation's highest court does.

By bowing out of a newly created case over who can participate in the gay marriage appeal, Chief Justice Jim Hannah and Justice Paul Danielson echoed the complaints of attorneys challenging Arkansas' definition of marriage as between a man and a woman.

"I cannot be complicit in machinations which have the effect of depriving justice to any party before this court," Danielson wrote.

Hannah wrote in his recusal letter that the court's majority "has created out of whole cloth an issue to delay the disposition" in the gay marriage case.

It's been nearly a year since Pulaski County Judge Chris Piazza struck down a voter-approved constitutional amendment and an earlier state law banning gay marriage. More than 500 gay couples married in the week following that decision before the state Supreme Court suspended his ruling while justices look at the case.

The ban has also been struck down by a federal judge on similar grounds, with that case also on appeal.

Divisions on the Supreme Court are nothing new, especially on split opinions that lend themselves to sharply worded dissenting opinions. But justices publicly taking one another to task over the handling of a case — and by doing so via traditionally staid recusal letters — is a major shift for the state's highest court.

The fight is over whether new Justice Rhonda Wood should participate in the case over the marriage ban's constitutionality. Wood replaced Justice Cliff Hoofman, who had recused himself from the gay marriage case last year. Former Gov. Mike Beebe appointed Robert McCorkindale to sit in for Hoofman on the case.

Hannah and Danielson are arguing that the court should stick with tradition and allow McCorkindale to sit in on the case instead of Wood, noting that he was appointed to the case without a time limit placed upon it.

"The governor's appointment power conferred by the Arkansas Constitution is a matter protected from judicial interference by the separation-of-powers doctrine," Hannah wrote. "This court cannot by judicial fiat usurp the powers of the executive branch."

The four justices remaining in the new case have defended the move, noting that the Arkansas constitution requires seven justices hear a case. Until the dispute over whether Wood or McCorkindale can participate is resolved, the gay marriage case can't proceed.

The debate comes as the U.S. Supreme Court is preparing later this month to hear oral arguments in the case that could decide whether gay marriage is legal nationwide. A ruling from the court is expected by late June.

It also comes on the heels of Arkansas being ground zero for another fight over gay rights, after a debate in the Legislature over a religious objections measure that Gov. Asa Hutchinson signed into law. The measure was reworked after it sparked protest and criticism from the state's largest businesses — including retail giant Wal-Mart — who called the initial version discriminatory.

This means Hutchinson, who now must appoint three special justices to the case over who can participate in the gay marriage appeal, again finds himself at the center of another fight over gay rights in the state. He says he'll move quickly on the appointments, but isn't eager to step into the court's fray.

"I don't know what's going on internally over there," Hutchinson told reporters last week. "I am concerned about it, but that's a separate branch of government and I can't solve the problem for them."

By Andrew DeMillo, Associated Press. Copyright 2015 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

The Gayly – April 12, 2015 @ 10:50am.