- Associated Press - Wednesday, April 8, 2015

LITTLE ROCK, Ark. (AP) - Two members of the Arkansas Supreme Court - including the chief justice - said Wednesday that a ruling on whether to legalize gay marriage in the state is being unnecessarily delayed by the rest of the court.

Chief Justice Jim Hannah and Associate Justice Paul Danielson recused themselves from a separate case surrounding whether Justice Rhonda Wood, who was sworn in in January, can rule on the constitutionality of the state’s ban on same-sex marriage. Justices last week said a separate case was needed on the matter, a move that likely pushes the consideration until after the U.S. Supreme Court rules on the same topic.

In separate letters, Hannah and Danielson criticized the decision as a delay tactic. The two said they would still participate in the gay marriage case.

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

Hannah wrote that the court’s majority “has created out of whole cloth an issue to delay the disposition” in the gay marriage case.

More than 500 same-sex couples married in Arkansas after a Pulaski County judge ruled in May that the ban violated the U.S. and state constitutions. The state appealed, and justices in November heard oral arguments on the case, which they then agreed to expedite.

Attorney General Leslie Rutledge asked the court for a new hearing after Wood and Robin Wynne were sworn in earlier this year. But the state Supreme Court, which was not responding directly to Rutledge’s filing, singled out only Wood in its ruling last week.

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 argued that McCorkindale was appointed specifically to the gay marriage case without a limit on his service.

“This court cannot by judicial fiat usurp the powers of the executive branch,” Hannah wrote.

The letters mean that only four of the seven justices are still participating in the case over who should decide on gay marriage’s constitutionality. Wood has also recused herself from that case, but not from the gay marriage lawsuit itself.

The four justices remaining in the case over who should participate in the gay marriage appeal said in a statement Wednesday that requests had been made for Gov. Asa Hutchinson to appoint special justices for the three who have recused themselves. The justices said that the constitution requires seven justices decide every case and said the dispute over whether Wood or McCorkindale participates must be addressed first.

“Until this issue is resolved, (the gay marriage case) cannot proceed,” the four said in the statement.

The U.S. Supreme Court is expected to hear arguments in April on a separate gay marriage case and have a decision by late June.

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Follow Andrew DeMillo on Twitter at www.twitter.com/ademillo

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