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Court will review emergency stay on marriage case

By Rachel Premack, Daily News Editor
and Shoham Geva, Daily Staff Reporter
Published March 24, 2014

On Wednesday, the Sixth Circuit court will hold a hearing concerning same-sex marriage in Michigan--the next step in what legal experts said will likely be a lengthy legal battle over the issue.

Late Saturday, following a decision on Friday by U.S. District Judge Bernard Friedman to strike down Michigan’s ban on same-sex marriage, Michigan Attorney General Bill Schuette requested a stay and filed an appeal on the case. The U.S. Court of Appeals for the Sixth Circuit accepted the stay, temporarily preventing further same-sex marriage licenses from being issued.

The stay is temporary and may end Wednesday, pending the Court of Appeals’ ruling. More than 300 marriages that occurred early Saturday are valid under state and federal law. However, if the stay progresses through the Court of Appeals, located in Cincinnati, as Schuette and other proponents of traditional marriage hope, there may be no more same-sex marriages in Michigan for a longer period.

Furthermore, Schuette, representing the state of Michigan, may file for an appeal in Friedman’s overturning of the 2004 ban. If the Sixth Circuit Court rules in favor of the state, same-sex marriage will likely become illegal again in Michigan.

However, Anna Kirkland, associate professor in the department of women’s studies, said same-sex marriage was likely to become legal in Michigan.

“I think there’s a clear path for victory on this for the same-sex couples seeking to get married,” Kirkland said. “The fight is basically over for conservatives on this one, I think, but it could still take a while with some up and downs.”

The legal team representing the plaintiffs in the case, April DeBoer and Jayne Rowse, has until Tuesday to respond to the state’s request for a stay.

Kenneth Mogill and Carole Stanyar, two of the five lawyers for the plaintiffs, confirmed Monday the legal team for the plaintiffs will file the response Tuesday, which comes in the form of a legal brief.

“All we can do is make the best arguments we can, which we believe are very strong, and the court will do what it does,” Mogill said.

Sara Wurfel, press secretary for Republican Gov. Rick Snyder, said the governor is not weighing into those issues yet.

“We await that court or legal direction on this complex, unusual situation,” Wurfel wrote in an e-mail interview. “It wouldn’t be appropriate for us to speculate on these matters while legal proceedings are ongoing. We’re sensitive to feelings on this issue and are hoping for a swift resolution for all involved.”

The Attorney General’s office did not provide a statement by press time. However, Schuette has stated that his reason for filing an appeal concerns the alleged violation of the federal court ruling on the popularly-passed 2004 vote to ban same-sex marriage in Michigan.

“Michigan voters enshrined that decision in our State constitution, and their will should stand and be respected,” Schuette wrote in a statement. “I will continue to carry out my duty to protect and defend the Constitution.”

Kirkland said that if Michigan’s Constitution violates the 14th amendment of the U.S. Constitution, which states that all people receive equal treatment under the law, then Schuette’s argument is null.

The tension between state and federal law is also clear in the unlikely case that same-sex marriage is deemed illegal in Michigan. Kirkland said she was unsure what would occur in this situation, but marriages would maintain their legality at the federal level.

However, same-sex couples are seeking rights at the state level, including health and adoption rights.

“It would be a political issue in the state at that point,” Kirkland said.

In any case, Washtenaw County Clerk Larry Kestenbaum said that the weddings on Saturday morning occurred legally. The marriage licenses remain in the county’s records proving their legality.

“In the end, when it’s all done, the state will have no choice but to recognize them,” Kestenbaum said.

He mentioned the example of these same-sex couples filing joint tax returns and adopting children, rights that married couples have.

After that, the brief will be submitted to a panel of three appeals judges, the makeup of which has not been publicly announced. The panel will either choose to extend the initial stay — expiring Wednesday — for a specified period of time or indefinitely.

The decision on whether to continue the stay will hinge on who the court thinks suffers more harm, said Jay Kaplan, staff attorney for the ACLU of Michigan LGBT Project.

“It’s sort of a balancing test,” Kaplan said. “It’s looking at what the state’s interest and what the plaintiffs’ interest are, and what is more compelling.”

The court must also rule on the request of a pending appeal submitted by the state. The plaintiffs are requesting an expedited appeal for the case.

The case may go beyond the court of appeals all the way to the U.S. Supreme Court. Mogill cited DeBoer v. Snyder, the series of arguments which took place after the state denied a same-sex couple the joint adoption of their children, which led to Friday’s ruling. It’s also the first case since Hollingsworth v. Perry in which a trial with expert testimony concerning LGBT matters occurred. This 2010 Supreme Court case allowed same-sex marriage to resume in the state of California.

“As result of that, the district court has made very detailed findings of fact and determinations as to credibility,” Mogill said concerning DeBoer v. Snyder. “All that having been said though, it’s entirely up to the court to decide which case or cases it will take.”

At the University, students envision going beyond marriage equality.

LSA junior Robert Schwarzhaupt, chair of Central Student Government’s LGBT Issues Commission, said that while the spread of marriage equality in Michigan is an exciting development for the LGBT community at the University, the focus when it comes to activism around the issue is a little more far reaching.

“We also want to make sure that as a community we’re looking toward to the future, and understanding that marriage is only the first step, that momentum doesn’t end there, that we recognize that people’s lives are impacted by a myriad of different things,” Schwarzhaupt said. “As a community we have a real responsibility towards making sure that those needs are addressed, on a personal and on a policy level.”

Schwarzhaupt cited issues such as education on gender expression, healthcare and employment rights as some of those next steps.


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