Schuette Files Motion to Expedite Hearing on Michigan Gay Marriage Ruling

Michigan Attorney General Bill Schuette filed a brief Friday to speed up a hearing on the state’s appeal of a federal judge’s ruling two weeks ago declaring Michigan’s voter-backed ban on same-sex marriage unconstitutional.

Schuette is asking a full panel of 15 judges at the 6th U.S. Circuit Court of Appeals to hear the appeal, bypassing an initial panel of three judges, according to a news release. He said that will move the issue forward more quickly, minimizing delays in ultimately reaching the U.S. Supreme Court.

“My responsibility as Attorney General to defend the Michigan Constitution and the voters’ decision to define marriage is important, and the sooner we reach a final resolution from the courts, the better,” Schuette said. “This move also offers the added benefit of conserving taxpayer resources by shortening the timeline of the litigation.”

Schuette’s office has already spent about $40,000 for expert witnesses who testified during Michigan’s nine-day gay marriage trial, MLive said. That’s in addition to the salaries of assistant attorneys general who worked on the case. Not all bills had been received at the time of that report, a spokesman for Schuette’s office said.

Schuette filed a formal petition for the hearing en banc, a step traditionally reserved for significant cases that is permitted under appeals court rules when new decisions conflict with previous rulings for for questions of “exceptional importance.”

“This option is not unprecedented.” Schuette said. “The 6th Circuit previously granted a similar request for the Grutter case involving the University of Michigan Law School admissions policies.”  

The 6th Circuit also granted a request for en banc consideration in Schuette v. BAMN, when two panels issued conflicting rulings, and a similar conflict situation is possible again with the four currently pending marriage appeals, Schuette said.

Cases challenging state marriage laws are currently scheduled for near simultaneous consideration in three other states within the 6th Circuit: Ohio (Obergefell v. Wymsylo), Kentucky (Love v. Beshear), and Tennessee (Tanco v. Haslam).  

With four states appealing on similar issues, the potential for panels to disagree is likely to result in future en banc hearing requests, Schuette said, adding that his request accelerates this process.

An attorney for April DeBoer and Jayne Rowse, the two women who filed the lawsuit challenging the 2004 constitutional amendment banning gay marriage in Michigan, did not immediately comment on Schuette’s motion, The Detroit Free Press said.

Case Background

In his ruling striking down the 10-year-old constitutional amendment, U.S. District Judge Bernard Friedman said it violated the Due Process Clause of the 14th Amendment.

Gay marriage was briefly legal in the state, an opportunity about 300 same-sex couples took advantage of and hastily tied the knot after clerks in four counties began issuing marriage licenses.

Schuette asked for an emergency stay of the ruling, which the 6th Circuit granted, the day after it was handed down. The stay was later extended pending a hearing on the appeal.

In appealing the ruling, Schuette argued that the case “presents the question whether one of our most fundamental rights – the right to vote – matters, or whether a judge can take an important social issue out of the hands of the voters.”

The amendment defining marriage as between a man and a woman was approved by 2.7 million Michigan voters in 2004.

The stay by the 6th Circuit put the status of the couples’ marriages in legal limbo. Michigan Gov. Rick Snyder acknowledged the marriages were legal, but said the state wouldn’t recognize them because a stay had been placed on the ruling.

However, U.S. Attorney General Eric Holder said that the federal government would recognize those couples’ marriages, allowing them to jointly file tax returns and apply for federal benefits.