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Federal judge who struck down Arkansas gay marriage ban won't lift stay pending state's appeal

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LITTLE ROCK, Arkansas — A federal judge who last year tossed out Arkansas' voter-approved gay-marriage ban said Wednesday she wouldn't lift her own stay and let same-sex marriage resume immediately.

U.S. District Judge Kristine Baker ruled against the state in November but set aside her decision temporarily so the Arkansas attorney general's office could appeal to the 8th U.S. Circuit Court of Appeals in St. Louis.

After the U.S. Supreme Court decided to not delay similar cases from other states where same-sex marriages are now occurring, lawyers for gay couples asked Baker to let marriages proceed in Arkansas. They said gay couples suffer continuing harm by not being allowed to marry.

Baker ruled Wednesday that two courts shouldn't hold jurisdiction simultaneously and that, even if she could claim jurisdiction, she wouldn't lift the stay because the 8th Circuit refused to grant one while agreeing to hear a separate, similar appeal in Missouri.

"The Supreme Court's refusal to impose a stay on other federal district court decisions does not compel this court to vacate the stay in this case," she wrote.

Arkansas Attorney General Leslie Rutledge said had Baker lifted the stay, it would have caused "unnecessary confusion, uncertainty and additional litigation."

Jack Wagoner, who represented the same-sex couples, said he was disappointed but "it was worth a shot." Wagoner added that an appeal to the 8th Circuit would likely be unsuccessful since Baker referred to that court in her order.

"Right now I don't think there is anything we can do but wait and stay hopeful until the end of June," he said. The U.S. Supreme Court is scheduled to hear arguments over gay marriages in the spring.

Lawyers for the couples say their clients are suffering "irreparable harm" because they are unable to file joint tax returns or obtain insurance coverage on a partner's plan.

A separate case is pending in the state Supreme Court. Some Arkansas counties issued same-sex marriage licenses for a week last May after a Pulaski County judge set aside the ban voters approved overwhelmingly in 2004.

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