LITTLE ROCK, Ark. (AP) - Attorney General Leslie Rutledge said Monday that the decision on whether to legalize gay marriage should be made by the current members of the state Supreme Court and not the justices who heard the case last year. The attorneys for the couples challenging Arkansas’ ban, meanwhile, said they won’t take a position on which justices should participate.
The two sides filed competing arguments in the case that has sidelined the lawsuit over Arkansas’ gay marriage ban that focuses on which justices should be involved in the proceedings. The court ruled a separate case was needed to decide the matter, a move that prompted two justices to accuse their colleagues of unnecessarily delaying the gay marriage challenge.
The debate could mean the state does not resolve the issue before the nation’s highest court does. The U.S. Supreme Court is preparing 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.
More than 500 same-sex couples married in Arkansas after a Pulaski County judge ruled in May that the state’s ban violated the U.S. and state constitutions. The state Supreme Court suspended that decision while the state appealed.
Rutledge argued that Justices Rhonda Wood and Robin Wynne, who joined the court in January, should hear the case rather than Special Justice Robert McCorkindale and retired Justice Donald Corbin. McCorkindale and Corbin were on the court when oral arguments were presented in November.
McCorkindale was appointed by Gov. Mike Beebe to sit in on the case for Justice Cliff Hoofman, who recused himself from the case and was replaced by Wood. Chief Justice Jim Hannah and Justice Paul Danielson have argued there was no time limit on McCorkindale’s appointment to the case.
“In the absence of any existing practice, the state believes that the question should be resolved in favor of duly elected and sitting Associate Justice Wood, who undeniably has the constitutional authority to participate in deciding cases during her term,” Rutledge said in the brief.
In a separate motion, the attorneys for the couples challenging the ban said they wouldn’t take a position on who should decide the case, saying they “specifically waive any objection to whatever determination this court might make itself as to the appropriate justices to decide the matter.”
Hannah, Danielson and Wood have recused themselves from the newly created case but not the gay marriage appeal. Gov. Asa Hutchinson has said he wants to move quickly on appointing special justices.
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