The Sixth Circuit U.S. Court of Appeals issued a stay at 5 p.m. March 22 of a district court decision issued the day before that struck down Michigan's ban on same-sex couples marrying, but hundreds of couples had already married by that time.
Michigan's first marriage of a same-sex couple took place just after 8 a.m. March 22 in Mason, just south of Lansing, Mich. The couple was Marsha Caspar and Glenna DeJong, both in their 50s, who have been together for 27 years.
The Detroit Free Press reported that at least four other counties had office hours on Saturday and issued marriage licenses to same-sex couples. In Oakland County, the paper said, a line stretched out the door when the office opened at 9 a.m., and marriages were being performed in auditoriums and hallways.
At least some of the rush was fueled by the knowledge that Michigan Attorney General Bill Schuette filed an emergency order Friday evening seeking a stay of U.S. District Court Judge Bernard Friedman's ruling that the Michigan Marriage Amendment was unconstitutional.
In issuing its stay, the Sixth Circuit said the order would remain in place until March 26 so there could be "a more reasoned consideration of the motion to stay." Plaintiffs attorney Dana Nessel said attorneys have not been alerted to provide oral argument so she assumes the appeals court will make its decision Wednesday based on briefs due Tuesday at noon.
Nessel said the plaintiff couple, April DeBoer and Jayne Rowse, opted not to seek a marriage license Saturday, noting that to do so at this point in the litigation, they could lose legal standing to pursue an appeal if the Sixth Circuit overturns the district court decision.
"Our clients have decided to get married when they can legally stay married," said Nessell, "and their marriage cannot be deemed illegitimate."
A federal judge in Detroit ruled March 21 that Michigan's ban against same-sex couples marrying violates the couples' constitutional rights to equal protection.
The Michigan decision, from U.S. District Court Judge Bernard Friedman (a Reagan appointee) falls squarely in line rulings from federal district court judges in eight other states in the past year since the U.S. Supreme Court struck down the federal Defense of Marriage Act (DOMA) with U.S. v. Windsor. The other eight are all on appeal to their various courts of appeal. Some suggest the Michigan case, DeBoer v. Michigan, may have a better chance at reaching U.S. Supreme Court appeal because, unlike the others, it involved a two-week-long trial.
Friedman issued the DeBoer ruling two weeks after hearing closing arguments in the trial that gave the state of Michigan a chance to establish a rationale for banning same-sex couples from marrying.
Friedman said he found the testimony from the state's star witness, California sociologist Mark Regnerus, to be "entirely unbelievable and not worth of serious consideration." He said he was unable to accord the testimony of three other state witnesses with "any significant weight," because it was "largely unbelievable" and represents "a fringe viewpoint that is rejected by the vast majority of their colleagues across a variety of social science fields."
Michigan Attorney General Bill Schuette filed an emergency request for a stay of Friedman's decision and an appeal of the decision to the Sixth Circuit U.S. Court of Appeals.
Human Rights Campaign President Chad Griffin said the Michigan decision shows that the "momentum for marriage equality is undeniable."
DeBoer v. Michigan started out as a lawsuit to challenge a state law barring unmarried couples from adopting. April DeBoer and longtime partner Jayne Rowse were seeking to adopt three children they had been raising together. But while hearing arguments in that case last year, Judge Friedman suggested the plaintiffs amend their lawsuit to challenge the law barring same-sex couples from marrying.
The Tenth Circuit will hear oral arguments in a case from Utah, Utah v. Kitchen, on April 10. Earlier this month, the Ninth Circuit U.S. Court of Appeals removed the Nevada and Hawaii consolidated cases from the court's calendar for April 9 in San Francisco. The Fourth Circuit U.S. Court of Appeals recently scheduled oral arguments in two lawsuits challenging Virginia's ban on same-sex couples marrying. The American Foundation for Equal Rights case, Bostic v. Virginia, and the ACLU-Lambda case, Harris v. Virginia, will be heard May 13.
Like Michigan, the other four cases—from Kentucky, Tennessee and Texas—are just arriving at their respective circuit courts.
Interesting factoid: From 1996 to 1999, one of Judge Friedman's law clerks was Judith Levy, the lesbian recently confirmed by the U.S. Senate to serve on the Detroit federal court. Levy was sworn into office at the Detroit courthouse on the same day Friedman issued his decision in the DeBoer case.
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