Jayne Rowse and April DeBoer with their children at home in Hazel Park. The couple's lawsuit against the state of Michigan resulted in overturning Michigan's ban on same-sex marriage in March and has been appealed to the 6th Circuit Court of Appeals by Gov. Snyder and Attorney General Bill Schutte. The appeal will be heard in Cincinnati, Ohio on Wed., Aug. 6. The three judge panel will also hear cases from Ohio, Tennessee and Kentucky from 1 p.m. to 3 p.m.

Michigan Marriage Trial: What Will Happen Aug. 6?

6th Circuit Trial To Take Up Cases From 4 States

By Jay Kaplan

With 92 federal and state cases currently pending in 33 states, and with federal district courts striking down state law prohibitions on same-sex couples marrying, almost on a weekly basis, we are witnessing tremendous judicial progress towards marriage equality. This could eventually lead to a decision by the U.S. Supreme Court on marriage equality for same-sex couples once and for all in all 50 states. Before we can get there, however, many of these favorable district court decisions are being appealed to the next level of federal courts, the Circuit Courts of Appeals. These Circuit Courts cover several states, and the Appeal Court decision involving one state can impact all of those covered states. As of this date, we have two favorable decisions out of the 10th Circuit Court of Appeals upholding federal district court decisions in Utah and Oklahoma in favor of marriage equality. Over the next several months we can expect more decisions from the various Circuit Court of Appeals which will impact when and how the U.S. Supreme Court will take up this issue.

Currently, the 6th Circuit Court of Appeals has scheduled a hearing date next Wednesday, Aug. 6 in the DeBoer v Snyder case, Michigan's marriage case, along with marriage cases pending in Tennessee, Ohio and Kentucky. The DeBoer plaintiffs are represented by private counsel Dana Nessel, Carol Stanyar, Ken Mogill and Robert Sedler. You'll recall that on March 21, Federal District Court Judge Bernard Friedman struck down Michigan's prohibition on same-sex couples marrying as unconstitutional, in violation of the equal protection clause of the federal constitution. Judge Friedman issued an order enjoining the State of Michigan from continuing to enforce this prohibition. He did not "stay" (put on hold) his Order and, for almost a 24-hour period, the law in Michigan was that same-sex couples could marry. During this short window, more that 300 same-sex couples (in four counties - Ingham, Oakland, Muskegon and Washtenaw) legally married in Michigan. Michigan's Attorney General Bill Schuette and Gov. Snyder immediately appealed to the 6th Circuit Court of Appeals requesting a stay of Judge Friedman's Order. It was granted by the 6th Circuit pending the appeal by the State, meaning that no further marriage licenses could be issued to same-sex couples.

The following is some basic information about the DeBoer Appeal in the 6th Circuit and what we may or may not be able to expect at the Aug. 6 hearing.

* The 6th Circuit covers four states: Michigan, Kentucky, Ohio and Tennessee. The Courtroom for the 6th Circuit Court of Appeals where cases are argued is in Cincinnati, Ohio.

* There are five marriage equality cases on appeal before the 6th Circuit and all five cases will be heard on August 6. The DeBoer appeal oral argument will be heard at 1 p.m. An hour has been scheduled for the argument, with both sides having 30 minutes.

* DeBoer is the only case on appeal challenging a state's ban on the right to marry. The other cases involve appeals of decisions ordering the states to recognize legal marriages between same-sex couples performed in other states. Ohio: Henry v Himes and Obergefill v Himes (recognizing out of state marriages for purposes of death certificate).

* Kentucky: Bourke v Beshear and Tennessee: Tanco v Haslem. These marriage recognition cases have been allotted 30 minutes - with 15 minutes for each side. Those cases will be heard after the DeBoer arguments. The 6th Circuit is expecting capacity crowds at these hearings and has set aside two overflow rooms for live streaming of the arguments.

* A three judge panel has been assigned to the case, as is typical with the Circuit Court of Appeals, despite the fact that there are a total of 14 sitting judges on the bench who hear cases (there is currently one vacancy on the Court). Those three judges (who have been appointed by the President of the United States for life terms) are Martha Craig Doughtrey (a Clinton appointee), Deborah Cook and Jeffrey Sutton (both appointees of George W.Bush). This panel will be hearing and deciding all five of the marriage related cases before the 6th Circuit. It's difficult to predict how they will decide based on the political affiliations of the Presidents who appointed them. Judge Sutton is considered a leader of conservative jurists on the 6th Circuit (he was Supreme Court Justice Antonin Scalia's clerk) and he is a member of the Federalist Society. However, he also was the first Republican Judge on a Circuit Court of Appeals to uphold the constitutionality of the Affordable Care Act. It's safe to say, however, that there needs to be at least two votes out of the three to uphold the lower court decision in DeBoer.

* What is unique about the federal district decision in the DeBoer case is that it is the only marriage equality decision (other than the Perry case in California) where there was a full-fledged trial with both evidence and testimony supporting findings of fact. This would seem to make the federal district decision less likely to be reversed on appeal. An appellate court reviews findings of law, not findings of fact.

* It is highly unlikely that the panel will issue a decision on any of these cases on Aug. 6th. All the cases have been thoroughly briefed, but it's much more likely that an opinion or opinions will be issued several months after the hearing date.

* The Court could issue one decision covering all five states, could issue five different opinions or could issue and opinion addressing the issue of marriage equality (DeBoer) and an opinion addressing the issue of recognizing legal marriages between same-sex couples granted in other states.

* These decisions will impact all four states in the 6th Circuit - so a favorable decision on marriage equality in DeBoer would impact not only Michigan, but Ohio, Kentucky and Tennessee.

* The panel could decide to uphold the DeBoer decision - in favor of marriage equality. That doesn't necessarily mean that marriage licenses would have to immediately be issued in these four states. Michigan could (and most likely will) appeal this decision to the U.S. Supreme Court, and in doing so, they could request a stay of the Appeals Court favorable decision. They could also request an "en banc" rehearing of the case - asking that the entire panel of the 6th Circuit Court of Appeals review the appeal. If an en banc hearing is granted, this would obviously further delay a final decision from the 6th Circuit and any potential appeal to the U.S. Supreme Court. (It should be noted that Michigan Attorney General Bill Schuette had previously requested that the State's appeal be heard en banc, bypassing a three judge panel. This request was denied.

* The panel could reverse the lower court decision and hold that it is constitutional for states to deny same-sex couples the right to marry. If that does happen, the DeBoer plaintiffs could also request an en banc review or could appeal directly to the U.S. Supreme Court. Usually the Supreme Court is inclined to take a case where there are differing opinions coming from Circuit Court of Appeals (and here we would have the 6th Circuit reaching a decision that is at odds with the 10th Circuit).

Other Michigan Marriage Cases

In addition to the DeBoer case, there are four other marriage and relationship recognition cases in Michigan that have been filed in the federal district court against Gov. Snyder and the State of Michigan.

Bassett v Snyder (2012) - a federal lawsuit brought by the ACLU challenging a Michigan law that makes it illegal for certain public employers from offering health insurance benefits to same-sex partners of employees, even where - the eligibility criteria is unrelated to recognizing a same-sex relationship. A preliminary injunction was entered by Judge Lawson in 2013, preventing further enforcement of the law and we are awaiting a final judgment on the law which could permanently enjoin the law.

Caspar v Snyder (2014) - a federal lawsuit filed by the ACLU challenging the State of Michigan's refusal to recognize the legal marriages granted in Michigan as a result of the favorable decision in DeBoer (prior to a stay being entered). A motion hearing has been scheduled for Aug. 21 in Judge Michael Goldsmith's court in Flint.

Blankenship v Snyder (2014) - a federal lawsuit filed in the Eastern District challenging the State's refusal to recognize an out of state marriage, as a result of the decision in DeBoer. Plaintiffs are represented by Alec Gibbs.

Morgan v Snyder- a federal lawsuit filed in the Western District, challenging the State's refusal to recognize an out of state marriage, as a result of the decision in DeBoer. Plaintiffs are represented by Stepanie Myott of Rhoades and McKee.

Jay Kaplan is an attorney with the ACLU of Michigan and heads the LGBT project. He can be reached at jkaplan@aclumich.org
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