By Kathleen Gray and Gina Damron
The nearly 300 same-sex Michigan couples who got married last weekend will face a longer wait to learn whether their vows will be legally valid.
The 6th Circuit Court of Appeals on Tuesday extended a stay on last week’s ruling by U.S. District Court Judge Bernard Friedman that struck down the Michigan’s ban on same-sex marriage.
The 2-1 ruling, issued late Tuesday afternoon, means the case will have to make its way through the appellate court, and likely the U.S. Supreme Court, before the couples know whether their marriages will be legally recognized.
And that Supreme Court decision probably won’t come until the summer of 2015 at the earliest, said Jay Kaplan, an attorney with the American Civil Liberties Union of Michigan.
The appeals court has set a schedule for briefs to be filed from both the state and attorneys for plaintiffs April DeBoer and Jayne Rowse — whose federal lawsuit got the ball rolling on the legal challenge — that go through the end of June. Michigan Attorney General Bill Schuette must file his brief by May 7. Rowse and DeBoer’s attorneys have until June 9. And Schuette has 17 more days after that to file a response.
Michigan now joins eight other states — Utah, Virginia, Texas, Oklahoma, Nevada, Ohio, Kentucky and Tennessee — where cases are pending in various appellate courts.
In its ruling, the appellate court cited a similar case in Utah in which the Supreme Court stayed a lower court’s decision so that the matter can ultimately be decided by the high court.
“A stay of the district court’s order is warranted” in the Michigan case, the appeals court panel said.
Appellate Judge Helene White dissented, saying the Utah case didn’t provide clear guidance or reasons for a stay, and holding up Friedman’s decision in the Michigan case wasn’t warranted.
Schuette, who had requested the stay, said he wasn’t surprised.
“As we anticipated, the 6th Circuit recognized the similarities to the Utah case and granted our request for stay,” said Joy Yearout, spokeswoman for Schuette. “We will now focus on preparing an appeal in defense of the constitution and the will of the people.”
But Dawn Nessel, the attorney for DeBoer and Rowse, who filed suit in federal court to be able to adopt the children they’ve been raising together and ended up challenging the state’s same-sex marriage ban, said she was disappointed.
“Obviously we would have loved to have the stay lifted and all same-sex couples be able to marry if they wish to do so,” she said. “I’m hopeful that this case will be resolved as quickly as possible ... I think it’s pretty clear that our case or another case will end up before the Supreme Court sooner than later.”
The stay capped a day of frenzied action on the same-sex marriage front: from stump speeches on the issue by politicians, to petition presentations by gay-rights groups at the state Capitol and threats of legal action by the ACLU.
Schuette talked about the issue during a Lansing stop on his re-election campaign announcement tour around the state, noting he’s merely upholding his duty to defend the state’s constitution.
“The final decision will be made by the U.S. Supreme Court,” he said. “If the citizens of the state want to change the constitution, they can, that’s their right. If the U.S. Supreme Court rules a different way, I will honor that.”
But he also took a softer tone when it came to the kids who are caught in the middle of the divisive battle.
“Families come in all sorts of colors, shapes and sizes. I want to have loving parents,” he said. “I know that single parents and gay parents love their kids. I’m cool with having parents who love their kids. Whether it’s gay or straight, kids today need loving, attentive parents.”
Acting on a late Friday request from Schuette to stay the ruling Friedman released earlier that day, the Court of Appeals issued a stay late Saturday afternoon. Before the Appeals Court issued the stay, however, 321 same-sex couples received marriage licenses and at least 299 couples were married.
Frank Colasonti Jr., who was married Saturday at the Oakland County Courthouse to his longtime partner James Ryder, said marriage has “transformed our lives.” Despite any legal uncertainty, Colasonti said he and Ryder feel comfortable about their decision.
“It is what it is,” said Colasonti, 61, of Birmingham. “We will have to be patient as it works its way through the court system.”
The stay leaves keeps those couples in a sort of limbo, waiting to see whether their vows will be legally recognized. Officials with the ACLU said their group is preparing to launch legal challenges if the state doesn’t recognize the validity of the marriages of same-sex couples performed Saturday.
The challenges could come if the state refuses to grant benefits to a spouse in a same-sex marriage, blocks adoptions by those couples or hinders the joint filing of state income tax forms, Kaplan said.
“There are more than 1,400 state laws dealing with a legal civil marriage,” he said. “And if the state maintains that these marriages are not legally valid, we have a problem with that and we’ll explore a legal challenge against the state.”
Ingham County Clerk Barb Byrum and East Lansing Mayor Nathan Triplett also sent a letter to U.S. Attorney General Eric Holder, asking him to federally recognize the marriages performed Saturday, which he also did for about 1,000 couples married in Utah before that case was put on hold. Such a move could at least give the Michigan couples standing to file joint federal tax returns and standing on other federal issues.
Schuette said he won’t quibble with the four county clerks — from Muskegon, Ingham, Oakland and Washtenaw — who took the unusual step to open Saturday to issue marriage licenses and perform nuptial ceremonies for couples.
“The courts will sort all that out,” Schuette said.
Kaplan predicted that Michigan may be the test case the Supreme Court will consider because it involves a full-fledged trial with testimony and evidence on the issue of same-sex marriage. The U.S. Supreme Court could take up one of the same-sex marriage cases later this year or early next year, and make a ruling by June 2015.
That isn’t much solace for Jody Valley and Elaine Thomason, an East Lansing couple who have been together for 25 years and who were married Saturday.
“We got a piece of paper with a seal on it. How can they say we’re not married,” Valley said. “It was such a high for us on Saturday. But now it doesn’t feel so good. Are we married or aren’t we?”
Michigan voters decided in 2004 that marriage is defined as a union between a man and a woman. The state has claimed that children thrive best when raised by mothers and fathers, and has argued that is why it wants to preserve the traditional definition of marriage.
A group of same-sex marriage supporters gathered Tuesday at the state Capitol to share their joy over Friedman’s ruling and dismay that Schuette continues his fight to uphold the ban on same-sex marriage that voters approved by a 59%-41% margin.
“I truly don’t understand the rabid resistance from some people,” said Glenna DeJong, who with Marsha Caspar, were the first same-sex couple to get married in Michigan on Saturday. “I do know we’ll be on the right side of history. We need everyone to stay engaged in this fight because after 27 years, I’m done waiting.”
The group, which included several lawmakers and Equality Michigan, which advocates for the LGBT community and issues, gathered more than 14,000 signatures on a petition calling on Gov. Rick Snyder and Schuette to drop the state’s appeal of Friedman’s ruling. They dropped the signatures at Schuette’s office Tuesday afternoon.
“We’re asking Gov. Snyder to abide by the judicial ruling and order your attorney general to stand down. There should be no more wasting our taxpayer dollars and making phony cases about what families should look like with baloney science,” said state Sen. Gretchen Whitmer, D-East Lansing. “We need to permit equal rights for everyone and acknowledge these beautiful unions that happened this weekend.”
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