Justice Of The Peace Encouraged By Arkansas AG Same-Sex Marriage Opinion

Aug 6, 2015

A marriage ceremony being performed in the Pulaski County Courthouse in May 2014.
Credit Michael Hibblen / KUAR News

An opinion from the Arkansas attorney general’s office is giving some hope to justices of the peace who want to officiate weddings but be allowed to refuse the public service to same-sex couples.

JP Alan Malone of Cleburne County told KUAR on Thursday that he is encouraged by Wednesday’s advisory opinion in which AG Leslie Rutledge (R) contends the state’s religious freedom law might allow JPs to wed some, but not all.

“The attorney general’s opinion would definitely have me at least look back at my options,” said Malone. “I was concerned that I would have litigation against me for doing one and not the other. I am Christian and I won’t do same-sex services. My thoughts were that if I did none, because I’m not obligated as a JP to do any, I’d just have to stop doing all of them." 

UALR Bowen School of Law Professor John DiPippa said the attorney general’s opinion offers “a false encouragement” to those opposed to same-sex marriage.

“A justice of the peace gets authority to officiate a wedding by virtue of winning an election and by virtue of holding a public office. Even though that person may claim a religious burden to performing a same-sex wedding, I think that burden is overcome by the obligation of a government official to carry out the law. What the attorney general’s opinion doesn’t go on to explain is that there is a compelling reason for government officials to carry out same-sex weddings and that’s the equal protection of the law,” said DiPippa.

Currently there are no justices of the peace in Cleburne County listed by the clerk’s office as available to officiate weddings. That’s something Malone said has been a problem for some county residents.

“People have called me because I was the one doing the most of them. They’ve called me and were like, ‘I don’t know how I’m going to get married’ or ‘where am I going to go?’ I feel for them, I really do, but it’s just too much of a risk for me to take until I’m sure I would be defended,” said Malone.

But even with Rutledge’s somewhat favorable advisory opinion, asked for by State Senator Bruce Maloch (D-Magnolia), Malone said he’s still wary of performing the public service due to the likelihood of legal battles. However, he said if legal aid is made available he could be willing to lead a court challenge.

“I might do that, especially as I see that Senator Rapert and the Family Council are looking at ways to defend clerks and JPs that are having religious issues with the same-sex marriages,” said Malone.

Professor DiPippa said using religious justifications to deny equal access to public services would certainly lead to a legal battle.

“Imagine if a justice of the peace decided that he or she had a religious objection to performing an interracial marriage. They would surely lose that lawsuit because there’s a compelling interest to enforce constitutional rights,” said DiPippa. “By the same argument there’s a compelling interest to require government officials, like justices of the peace, to uphold people’s rights. While there is some encouragement, I think the opinion doesn’t go far enough and explain that it’s really a very false encouragement. Ultimately I would expect that courts would say, ‘yes you may have a religious burden but no, you have to carry out your job.”

Cleburne County Clerk Dana Guffey resigned earlier this summer, following the U.S. Supreme Court legalizing marriage for same-sex couples, stating she had moral objections.