Michigan's Marriage Ban Draws Strong Reaction

Dissent Says 6th Circuit Failed To Do Its Job

By Todd Heywood

LANSING - Adding months, perhaps years, for same-sex couples to receive recognition from the state of Michigan for their marriages, the U.S. 6th Circuit Court of Appeals late Thursday afternoon ruled that Michigan's ban on same-sex marriages was legal.

The move breaks a series of federal court rulings which have found marriage bans unconstitutional.

The ACLU announced it would immediately seek a hearing before the U.S. Supreme Court, and attorney Dana Nessel, who represents April DeBoer and Jayne Rowse, the plaintiffs in Michigan's challenge to the marriage ban, said before the ruling came down that she would be going directly to the Supreme Court. The losing sides could ask for a rehearing before the entire 6th Circuit Appeals Court.

The ruling applies to Michigan, Ohio, Kentucky and Tennessee.

Because this ruling upholds a marriage ban, experts expect the high court to take it up. Traditionally the court takes up issues only when the various appeals courts across the country have come to different conclusions. Supreme Court Justice Ruth Bader Ginsburg told an audience in Minnesota in September that "there will be some urgency" if a court upheld a marriage ban.

"There are people in a precarious situation," said Emily Horvath, an adjunct law professor at WMU Cooley Law school. She called the ruling a "cop out."

"The 6th Circuit has forced the hand of the Supreme Court - 'Now you've got to decide,'" she says of the ruling, noting Ginsburg's earlier statements, and the fact the court refused to grant a hearing in the 7th Circuit Court of Appeals case earlier this year.

"A decision could come out as soon as June 30," Horvath said, noting the high court is still reviewing cases to be heard for the current session.

"There are many ways, as these lower court decisions confirm, to look at this question: originalism; rational basis review; animus; fundamental rights; suspect classifications; evolving meaning. The parties in one way or another have invoked them all. Not one of the plaintiffs' theories, however, makes the case for constitutionalizing the definition of marriage and for removing the issue from the place it has been since the founding: in the hands of state voters," Appeals Court Judges Jeffrey Sutton and Deborah Cook wrote in the majority opinion. Both judges are appointees of President George W. Bush.

Dissent

In a blistering dissent, Judge Martha Craig Daughtrey ripped the majority opinion apart.

"These four cases from our sister circuits provide a rich mine of responses to every rationale raised by the defendants in the 6th Circuit cases as a basis for excluding same-sex couples from contracting valid marriages," she writes after explaining the findings in four other court rulings on marriage equality. "Indeed, it would seem unnecessary for this court to do more than cite those cases in affirming the district courts' decisions in the six cases now before us. Because the correct result is so obvious, one is tempted to speculate that the majority has purposefully taken the contrary position to create the circuit split regarding the legality of same-sex marriage that could prompt a grant of certiorari by the Supreme Court and an end to the uncertainty of status and the interstate chaos that the current discrepancy in state laws threatens. Perhaps that is the case, but it does not relieve the dissenting member of the panel from the obligation of a rejoinder."

Equality Michigan and others in support of marriage equality have promised residents a ballot initiative to place the repeal of the state's amendment on the ballot in 2016.

Since the majority appeared to be advocating for a voter driven referendum on the amendment, BTL asked some if the legislature should move an amendment to place such an initiative on the ballot in 2015 - circumventing a lengthy and costly signature collection process.

Democratic House Leader Tim Greimel (D-Auburn Hills) said such a move was not out of the question, but there was a matter of timing. He said he would want it to be on the ballot for a high voter turn out election, such as the 2016 Presidential election.

Emily Dievendorf, executive director of Equality Michigan, was hesitant to allow the Republican legislature the opportunity to author a ballot initiative.

"I don't trust that a legislature that embraced Gary Glenn would also responsibly put a marriage equality question on the ballot in a fair and balanced way, and not harmful in some way," she said.

The Political Response

Shortly after the opinion was issued, Michigan legislative and executive branch leaders began weighing in.

After citing his oath of office, Gov. Rick Snyder - a Republican who won re-election Tuesday - said the state was prohibited from recognizing marriages of same-sex couples.

"The 6th U.S. Circuit Court of Appeals has upheld the language in our state's constitution. This means there is no change in Michigan's marriage laws. As I have previously stated, the same-sex couples who married at county clerk offices in the period between U.S. District Judge Bernard Friedman's ruling in March and the 6th U.S. Circuit Court of Appeals' temporary stay of that ruling, were legally married," Snyder said in a press statement. "However, the Court of Appeals decision does not allow for state benefits of marriage for those same-sex couples in accordance with our state constitution. That decision only can be changed if today's Appeals Court ruling is overturned."

Republican Attorney General Bill Schuette, who appealed the original decision by District Court Judge Bernard Friedman, issued a statement calling on the Supreme Court to take up the case quickly.

"The U.S. Court of Appeals for the 6th Circuit has ruled, and Michigan's constitution remains in full effect," said Schuette in a statement. "As I have stated repeatedly, the U.S. Supreme Court will have the final word on this issue. The sooner they rule, the better, for Michigan and the country."

Schuette was also re-elected Tuesday to serve another four-year term as the state's top lawyer.

Democrats also weighed in on the ruling.

"It's very disappointing," said Greimel, who was selected to serve in as Democratic leader in the state house for another two years Thursday.

He called for the state to move quickly towards marriage equality.

"This ruling runs counter to the findings of three other Courts of Appeal, findings the Supreme Court validated in their refusal to review them," said State Rep. Sam Singh of East Lansing. "In both their rulings overturning DOMA and decision to let lower court rulings stand, the Supreme Court sent a very clear message that bans on same-sex marriage run afoul of the Constitution. The decision by the 6th Circuit is disappointing, but it now likely means the Supreme Court will finally settle this matter. I look forward to celebrating full marriage equality in all 50 states in the not too distant future."

Dievendorf was decidedly more strident in her response to the ruling.

"In March, we saw couples that had been together 30 to 50 years finally have their marriages recognized and respected by the government," she said in an interview with BTL. "To us, that was an acknowledgement of our humanity. Revoking that recognition is a slap in the face."

For Ingham County Clerk Barb Byrum the decision was even more bitter. Byrum was one of the county clerks who opened their offices on a Saturday in March to perform marriages for same-sex couples. She was the first clerk in the state to marry a same-sex couple that day. But this ruling comes after she learned one of the women in one of the couples she married had passed away.

"One of the brides I married has passed away while waiting for her marriage to be recognized by the state," Bryum said. "It's wrong. It's sick."


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