Faulkner County Clerk Melinda Reynolds could have issued marriage licenses to same-sex couples on Monday, but doing so could be problematic for reasons that don’t have anything to do with the religious or ideological questions that dominate the public discussion of the issue according to county officials.

County Attorney David Hogue said on Monday that the county’s decision to not begin issuing licenses immediately is not a religious or ideological "stand" on the issue by the county. Rather, he said, the county’s decision is rooted in the purely legal and contractual aspects of marriage.

On Friday, Pulaski County Circuit Judge Chris Piazza held that a state constitutional amendment establishing a "man and woman" definition of marriage and a handful of state statutes to that effect are unconstitutional. For the counties in Piazza’s jurisdiction, which are Pulaski and Perry counties, as well as those counties that as of Friday were parties to the lawsuit, which are White, Lonoke, Conway, Saline and Washington counties, Piazza’s interpretation of the law is binding. 

Faulkner County was a party to the lawsuit because County Clerk Melinda Reynolds was named as a defendant by plaintiffs who wanted to marry here. However, the suit against Reynolds was dismissed on April 1, and so Piazza’s ruling is not binding on Faulkner County because it was not a party to the lawsuit at the time Piazza ruled.

At lease two Arkansas counties that didn’t have anything to do with the suit, Marion and Carroll countiese, were issuing marriage licenses to same-sex applicants on Monday. Faulkner County could do the same, Hogue said, but he said it was more prudent to wait for the appellate process to settle the law.

The state Attorney General’s office filed an appeal on Saturday to put the issue before the state Supreme Court for a final decision that will be binding on the entire state.

If Faulkner County issued marriage licenses now, Hogue said, and same-sex couples in the county who have waited to marry did so on Monday or in coming days before the state Supreme Court decided the issue, they would create a number of contractual and statutory obligations that exist between spouses that are different than those that exist between unmarried couples. These would include property, creditor/borrower and tax issues that would all be voidable or uncertain if the state Supreme Court were to overturn Piazza’s ruling and possibly invalidate their marriages. 

Though Faulkner County’s same-sex couples can’t get marriage licenses at the courthouse in this county, they can at the Perry, Saline, Pulaski and Washington county clerks’ offices — or they could on Monday. 

In Arkansas, there is no requirement for marriage license applicants to show proof of residency. Local applicants can get their license in one of the counties issuing them, have a formal or informal ceremony in this or any other county to satisfy the solemnization and witness requirements, and return the license to the county clerk’s office they got it from.