Michigan’s Ban on Gay Marriage is Back: 6th Circuit Extends Stay

The ban on gay marriage in Michigan is back.

In a 2-1 decision Tuesday, the 6th U.S. Circuit Court of Appeals on Tuesday extended its stay on U.S. District Judge Bernard Friedman’s historic ruling turning back Michigan’s constitutional ban on gay marriage until the state’s appeal is heard.

On Friday, Friedman said a 2004 constitutional amendment defining marriage as between a man and a woman violated the Equal Protection Clause in the 14th Amendment of the U.S. Constitution. Some 2.7 million Michigan voters approved the ban by a margin of 59 percent to 41 percent.

The court cited the U.S. Supreme Court's decision to halt same-sex marriages in Utah until the high court rules on the matter.

“ … Several district courts that have struck down laws prohibiting same-sex marriage similar to the Michigan amendment at issue here have also granted requests for stays made by state defendants,” U.S. District Court Judge Karen Caldwell wrote for the majority.

In her dissent, Circuit Judge Helene White said the stay was not warranted.

“In order to justify a stay of the district court's ruling, the defendant must demonstrate at least serious questions going to the merits and irreparable harm that decidedly outweighs the harm that will be inflicted on others if a stay is granted,” she wrote. “Michigan has not made the  requisite showing.”

White also said that although the Supreme Court stayed the decision in Utah, “it did so without a statement of reasons, and therefore the order provides little guidance.”

Michigan Attorney General Bill Schuette, who requested the stay, told the Detroit Free Press he anticipated the 6th Circuit would recognize the similarities with the Utah case.

“We will now focus on preparing an appeal in defense of the constitution and the will of the people,” he said, noting the final decision now rests with the U.S. Supreme Court.

“If the citizens of the state want to change the Constitution, they can, that’s their right,” he said. “If U.S. Supreme Court rules a different way, I will honor that.”

Extension of the stay means gay couples who rushed to the altar to marry after Friday’s ruling will remain in legal limbo. County clerks offices in Oakland, Washtenaw and Muskegon opened Saturday to perform marriages, the Detroit Free Press said.

At least 299 couples were married before the emergency stay was granted Saturday.

The ACLU of Michigan said it will launch legal challenges if the state doesn’t recognize those marriages, blocks adoptions or denies joint income tax returns.

Jay Kaplan, an attorney for ACLU Michigan, also wasn’t surprised the 6th Circuit extended the stay. He thinks the Michigan case may be the one the U.S. Supreme Court ultimately hears because Friedman’s ruling came after a nine-day trial prompted  by April DeBoer and Jayne Rowse, two nurses from Hazel Park who have been together for a decade, but were prohibited from jointly adopting children because they didn’t have a legal marriage. 

The cases could come before the high court late this year or early next, meaning a ruling is unlikely before June 2015.

Glenna DeJong, whose marriage to Marsha Caspar was the first same-sex marriage to take place in Michigan after Friedman’s ruling, told the newspaper she doesn’t understand the “rabid resistance” from some people to marriages like hers.

“I do know we’ll be on the right side of history,” she said. “We need everyone to be and stay engaged in this fight because after 27 years, I’m done waiting.”