For those watching the news recently, you likely saw that a major – and surprising – decision came out of the 6th Circuit Court of Appeals on Thursday, November 6, 2014. Specifically, the two conservatives on a three-judge panel of the Court of Appeals sided with Attorney General Bill Schuette and the State of Michigan and ruled that Michigan’s 2004 Constitutional Amendment banning same-sex marriage was constitutional. In so doing, the 6th Circuit – which consists of federal courts in Michigan, Ohio, Kentucky, and Tennessee – joined the 8th Circuit as the only circuit courts that have upheld state bans on same-sex marriage. With two circuits upholding such bans and four circuits – the 4th, 7th, 9th, and 10th – striking them down, the question of same-sex marriage now seems destined to be decided by the United States Supreme Court, and possibly sooner than later.
The case, DeBoer v Snyder, was brought by Hazel Park nurses April DeBoer and Jayne Rowse in an effort to overturn the Michigan Marriage Amendment and win the right to marry each other and adopt each other’s children. The Marriage Amendment had been enacted in 2004 after a referendum to define marriage as being between one man and one woman passed with 58% of the popular vote in Michigan. The nurses’ case had originally went before U.S. District Judge Bernard Friedman, who ruled this past March that the Marriage Amendment was unconstitutional, largely because the State could not show that banning same-sex marriage would truly benefit children. Thus, gay marriage became legal in Michigan … for about 24 hours. That was how long it took for Bill Schuette to appeal the ruling to the 6th Circuit Court of Appeals, which then issued a stay that put the legalization of gay marriage on hold until it could reach a decision on appeal. It also left in limbo the approximately 300 couples who had gotten married in Michigan during that 24-hour period.
This past summer, a panel of the 6th Circuit – consisting of two conservatives and one liberal – heard the appeal of Judge Friedman’s decision striking down Michigan’s ban on same-sex marriage, as well as appeals of similar decisions by U.S. District Judges in Ohio, Kentucky, and Tennessee. When they issued their opinion Thursday, November 6, it sent shockwaves through the gay marriage debate across the entire country. Despite a recent tide of cases overturning gay marriage bans – which has led to gay marriage becoming legal in 32 states – the 6th Circuit panel ruled 2-1 that the same-sex marriage ban was not unconstitutional and should be upheld. In a long written decision, the panel essentially held that the Marriage Amendment should stand because it is not the place of judges to decide whether or not gays and lesbians should be able to marry. Instead, they wrote, that decision should be left to the will of the people, in a majority-rules legislative process, such as the referendum that led to the Marriage Amendment and its prohibition on same-sex marriage in Michigan.
In a passionate decent, the panel’s one liberal judge argued that not only do the courts have the ability to step in when majority rule tramples the right of minorities – they have a duty. She pointed to the fact that it was the will of the majority that denied women the right to vote and interracial couples the right to marry, and it was the courts who stepped in to restore these rights. Indeed, she wrote, “If we in the judiciary do not have the authority, and indeed the responsibility to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances … prove to be nothing but shams.” Arguments such as these had been enough to strike down gay marriage bans in four other Circuits, but here they were outvoted 2-1.
What happens next?
The Hazel Park nurses have been fighting Michigan’s ban on same-sex marriage for over two years, and they and their attorneys vowed to keep fighting after their recent defeat. The next step up the ladder of appeals would be to ask the 6th Circuit to re-hear the cases en banc – a French term meaning “on the bench.” In an en banc review, all of the 6th Circuit Court of Appeals Judges would re-hear the case, as opposed to just a three-judge panel.
Whether or not an en banc review is requested, the parties seem destined to seek a review by the U.S. Supreme Court, as likely will the losing parties from the other 6th Circuit states that were consolidated into the Hazel Park nurses’ appeal. It is within the Supreme Court’s discretion whether to hear a case or to allow the lower court’s ruling to stand. The Supreme Court historically takes up cases when there is an issue of great significance or when there is a split between the various Circuits. After the 6th Circuit’s recent decision in DeBoer, there now clearly is both. It appears this fight is headed for the highest court in the land.
Can’t Find An Answer to Your Question about Same-Sex Marriage in Michigan?
If you would like to discuss any issue having to do with same-sex marriage in Michigan, please call our office and Michigan family law and divorce attorneys Carlo J. Martina and Peter G. Bissett can answer your questions. Mr. Martina and Mr. Bissett can also represent you in all family law proceedings to ensure your rights and interests are protected.
Call Michigan divorce lawyers Carlo J. Martina and Peter G. Bissett today at (734) 254-1140 to schedule a consultation.