Despite the Pulaski County Circuit Court order Thursday declaring “all” Arkansas laws prohibiting same sex marriage unconstitutional, Drew County Attorney Cliff Gibson believes the decision is not binding on Drew County, according to Gibson’s third and latest letter of instructions to Drew County Clerk Lyna Gulledge.
As of Thursday morning, Gulledge had not received any applications from a same sex couple for a marriage license.
The text of Gibson’s Thursday afternoon letter to Gulledge:
Although I don’t have a copy of any decision, the media reports are that the Pulaski County Circuit Court has issued an additional Order declaring “all Arkansas laws prohibiting same sex marriage, or the issuance of licenses to same sex couples, unconstitutional. This was obviously done in response to the Opinion of the Arkansas Supreme Court yesterday.
It remains my opinion that the decisions of the Pulaski County Circuit Court are not binding on Drew County or you as Drew County Clerk as the plaintiffs in that case did not see fit to join Drew County or you to that case.
It further remains my opinion that you are bound to follow Arkansas law which prohibits you from issuing marriage licenses to same sex couples unless and until such time as the Arkansas Supreme Court may otherwise direct. If any same sex couples come to your office requesting a marriage license, I suggest that you give them a copy of this e-mail so that they will know why you are unable to comply with their request. I do ask that you obtain the identities and addresses of any such same sex couples that come to your office requesting a marriage license, and that you promptly provide that information to me as it may be necessary for me to communicate with them regarding their request.
Notwithstanding the suggesting of one of your sister clerks, I recommend that you not purchase new marriage license forms (that accommodate same sex couples) unless and until the Arkansas Supreme Court rules that such is what you must do.
As I have stated before, this is a fast moving matter, and my opinion may change based on new developments. Let me know if there are any questions.
C.C. “Cliff” Gibson, III, Esq.
Text of Gibson’s Thursday morning (second) letter to Gulledge advising her to “continue to obey the prohibition of Arkansas law against licensing a same sex marriage.”
As I stated in my earlier communication to you, this is a fast changing matter, and I write you now to update my opinion that you should continue to obey the prohibition of Arkansas law against licensing a same sex marriage.
Yesterday the Arkansas Supreme Court issued an Opinion in Smith v. Wright, Ark. Sup. Ct. No. CV-14-414, denying the request of Attorney General Dustin McDaniel for a stay of the ruling of the Pulaski County Circuit Court that declared two provisions of Arkansas law against same sex marriage unconstitutional. In that Opinion the Supreme Court specifically noted that Ark. Code Ann. § 9-11-208 (which prohibits the issuance of a marriage license to a same sex couple) was not ruled unconstitutional by the Pulaski County Circuit Court.
In light of the above-noted language of the Supreme Court in its Opinion, it is my opinion that you are prohibited by Ark. Code Ann. § 9-11-208 from issuing a marriage license to a same sex couple.
I advise you to not accept any applications of a same sex couple for a marriage license pending further rulings by the Courts.
Again, this is a fast moving matter, and my opinion may change as new developments become known. Let me know if there are any questions.
C.C. “Cliff” Gibson, III, Esq.
The following May 10 letter from Gibson to Gulledge outlines his initial instructions to Gulledge on how to proceed in issuing marriage licenses in light of Pulaski County Circuit Court Judge Chris Piazza’s ruling on same sex marriage:
I write you in response to your request for instructions as how to proceed in issuing marriage licenses on Monday in light of the subject Circuit Court decision in Pulaski County that held Arkansas law against same sex marriage unconstitutional late yesterday afternoon.
Although it is unclear from the decision, the Arkansas Democrat-Gazette article reporting on the decision stated that a small number of Arkansas Counties were among the defendants in the case, but, notably, neither Drew County nor you as Drew County Clerk were joined as a defendant in the case, and the Democrat-Gazette article stated that at least one county was dropped as a defendant from the case before the decision was made and entered. I would, however, note that the Democrat-Gazette article did report that at least a couple of State agencies were defendants in the case.
It is my opinion that the Pulaski County Circuit Court’s decision on same sex marriage does not apply to Drew County or you as Drew County Clerk at least at this time because neither Drew County nor you were sued in the case and, consequently, had no opportunity to be heard on the merits of the issues before the decision was made. While that Pulaski County Circuit Court decision is legally binding on the defendants that the plaintiffs selected to sue in that case, it is not legally binding on Counties and County Officials who were not given an opportunity to be heard on the matter before it was decided. My opinion is based on basic notions of due process that come from both the United States and Arkansas Constitutions which basically means that no legal action may be taken against anyone unless and until they have been notified of the proposed action and given an opportunity to be heard before that action is taken.
I do understand from our conversation that there was a telephone conference between County Clerks from across the State to discuss what to do come Monday morning if a same sex couple comes in wanting a marriage license, and that there was a good bit of confusion about what to do. At this point, it is my opinion that the wise thing to do is to not change anything or do anything different as the law against same sex marriage is both a matter of Legislative Act and a provision of the Arkansas Constitution which are both still binding on you and Drew County unless and until either the Arkansas Supreme Court holds otherwise or a Circuit Court with jurisdiction over Drew County and you as Drew County Clerk rules otherwise.
The Democrat-Gazette article reports that Arkansas Attorney General Dustin McDaniel has stated an intention to appeal the Pulaski County Circuit Court decision to the Arkansas Supreme Court, and to seek a stay of the decision pending the completion of that appeal and a resulting decision from the Arkansas Supreme Court.
I recognize that this is an emotional issue for many people on both sides of this issue. If you have a same sex couple apply to you for a marriage license, please have them fill out an application as you do with a heterosexual couple and promptly forward me a copy of the application so that I may advise you with respect to same.
Of course, let me know if there are any questions. I would inform you that I am traveling to Newark, New Jersey, this weekend so that I may appear in a case I have in Federal Court up there on Monday. If you can’t get me on my cell phone, leave a message and I will get back with you as quickly as I can. Please keep in mind that this appears to be a fast developing situation, and that my opinion may change based on new developments occurring. I will certainly let you know in prompt fashion if my opinion changes.
So Judge Akin will be made aware of this situation, I am sending him a copy of this e-mail and am attaching a copy of the Pulaski County Circuit Court decision. Since I also suspect local news media will want to know about what I have told you, I am also copying them with this e-mail.
C.C. “Cliff” Gibson, III, Esq.