August 6, 2014
Michigan’s gay marriage ban is set for another legal showdown, only this one involves more players, more judges and likely more drama.
Today, the historic civil rights case that centers on the right to marry heads to the U.S. 6th Circuit Court of Appeals in Cincinnati, where three federal appeals judges will decide the fate of same-sex marriage bans in Michigan, Tennessee, Kentucky and Ohio. In each of these states, a judge has ruled in favor of same-sex marriage, though all rulings have been appealed.
The Midwest states are part of an explosive litigation movement in which same-sex couples nationwide are fighting for the right to marry, or to have their existing marriages legally recognized. More than 75 lawsuits challenging gay marriage bans are pending in 32 states. Since December, courts have ruled in favor of same-sex marriage in 29 cases, with those victories now on appeal.
Michigan’s case is in that category and ultimately could go before the U.S. Supreme Court, which has not yet issued a definitive ruling on same-sex marriage.
“The 6th Circuit cases promise to be a blockbuster, whatever the court decides. There are multiple decisions from multiple jurisdictions involving multiple issues for this court to sort through,” said Marc Spindelman, a constitutional and family law professor at the Ohio State University who has written extensively on issues of gender, sexuality and the law.
At issue, he said, are two key questions: “How do recent U.S. Supreme Court decisions involving lesbian and gay rights affect state-level bans on same-sex marriage? What should happen to state laws that treat same-sex couples and their marriages different than their cross-sex counterparts?”
Wednesday’s oral arguments may contain some important clues about how the 6th Circuit judges read and understand the legal precedents in this area, Spindelman said. They could also reveal if the court will join or buck the emerging of courts declaring that state bans on same-sex marriage are unconstitutional, he said.
Gay marriage is now legal in 19 states and the District of Columbia. The states are Oregon, Pennsylvania, Massachusetts, California, Connecticut, Iowa, New Hampshire, Vermont, New York, Maine, Maryland, Washington, Delaware, Hawaii, Minnesota, New Jersey, Rhode Island, New Mexico and Illinois.
Two Hazel Park nurses are fighting to put Michigan on that list. They will take their fight to the 6th Circuit today. Oral arguments are set to begin at 1 p.m., with Michigan going first. Each side will get 30 minutes to make its case.
The state of Michigan, where voters banned same-sex marriage in 2004, has vowed a vigorous fight before the Sixth Circuit to preserve traditional marriage.
The state argues that voters already have spoken on the issue of gay marriage and that the will of the voters should not be drowned out by a judge.
The state also has long argued that it has a legitimate state interest in preserving traditional marriage, maintaining that children thrive best when raised by moms and dads, and that same-sex parenting is too new a concept to embrace without more research.
To the chagrin of the state, a federal judge disagreed with all of those arguments.
In March, U.S. District Judge Bernard Friedman struck down Michigan’s ban on gay marriage in a historic ruling that made Michigan the 18th state in the nation to allow gays and lesbians to marry.
In declaring the ban unconstitutional, Friedman provided a moral and legal victory to the two plaintiffs: April DeBoer and Jayne Rowse, who fought for the right to marry and adopt each other’s special needs children.
Friedman, though, went a step further than other judges across the country who have made similar decisions.
Friedman did not stay his ruling, which immediately prompted dozens of same-sex couples to rush to local clerks offices to get married. More than 300 couples got married statewide, but their marriages are now in limbo as the state eventually convinced the 6th Circuit to stay Friedman’s ruling pending an appeal.
This is what the state is up against:
In his 31-page ruling, Friedman heavily criticized the state’s position that the will of the voters should have been upheld, noting that just because voters approve something doesn’t make it right, especially when it violates the Constitution.
“In attempting to define this case as a challenge to ‘the will of the people,’ state defendants lost sight of what this case is truly about: people,” Friedman wrote. “No court record of this proceeding could ever fully convey the personal sacrifice of these two plaintiffs who seek to ensure that the state may no longer impair the rights of their children and the thousands of others now being raised by same-sex couples ...
“Today’s decision ... affirms the enduring principle that regardless of whoever finds favor in the eyes of the most recent majority, the guarantee of equal protection must prevail.”
Michigan Attorney General Bill Schuette, meanwhile, has vowed to continue to fight to uphold the Michigan Marriage Amendment Act, which 2.7 million voters approved in 2004 when they decided that marriage can only be defined as a union between a man and a woman.
“In 2004, the citizens of Michigan recognized that diversity in parenting is best for kids and families because moms and dads are not interchangeable. Michigan voters enshrined that decision in our state constitution, and their will should stand and be respected,” Schuette said following the March ruling.
Unlike most federal judges who have taken up the gay marriage issue, Friedman opted last fall to hold a trial and give both sides the chance to present their arguments and scientific evidence.
The state’s experts said that their studies show that children of same-sex couples have poorer outcomes than kids raised by married moms and dads.
Friedman didn’t find the state’s experts credible.
Friedman, however, said he did find the plaintiffs’ experts to be credible. They said their research showed that there were no real differences in the outcomes of children raised by same-sex couples compared with those raised by moms and dads.
The plaintiffs also argued that child outcomes should have nothing to do with the marriage issue, anyway, because having kids isn’t a prerequisite for getting married.
Friedman agreed.
Dana Nessel, one of the lawyers for DeBoer and Rowse, said a ruling from the U.S. Supreme Court is long overdue. The patchwork of legislation involving same-sex marriage has led to chaos, she said, specifically for same-sex couples who are legally recognized in one state but then move to another and have no legal recognition.
“This has to be resolved,” Nessel said. “This can’t continue. You can’t have this patchwork system anymore.”
Kentucky, Ohio, Tennessee cases
While all cases before the 6th Circuit are about gay marriage, each one is slightly different. Here is what the gay marriage landscape looks like in Tennessee, Kentucky and Ohio.
In February, a federal judge ruled that Kentucky must recognize same-sex marriages legally performed in other states. After the ruling, Kentucky’s attorney general said he wouldn’t defend the state’s ban on same-sex marriage, but the governor stepped in and filed an appeal.
The Kentucky case was originally about getting respect for same-sex marriages performed in other states. However, two unmarried, same-sex couples ended up intervening in the case and fought for the right to marry. In July, the same federal judge ruled in their favor and declared the state’s ban on same-sex marriage unconstitutional. That’s also on appeal.
In December, a federal judge ruled that the state of Ohio must respect the marriages of same-sex couples performed in other states for the purpose of listing surviving spouses on death certificates. In April, in a separate case, the same judge ruled that Ohio must respect all married same-sex couples who wed in other states for all purposes.
Both rulings are on appeal before the 6th Circuit.
Meanwhile, in a third Ohio case, an unmarried same-sex couple filed a lawsuit in April seeking the right to marry in Ohio. That case is pending.
In Tennessee, a federal judge in March ordered state officials there to recognize the marriages of three same-sex couples while they challenge the state’s marriage ban. The judge ruled that they should be respected as married as the lawsuit proceeds. The state of Tennessee appealed to the 6th Circuit.
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