Updated as of Nov. 7
BREAKING: At 4:40 p.m. Nov. 6 the 6th Circuit Court of Appeals in Cincinnati became the first federal appellate court in over a year to rule against the freedom to marry. The ruling overturned lower court decisions out of Tennessee, Kentucky, Ohio and Michigan, all of which found that denying marriage to gay couples is unconstitutional. The 6th Circuit’s decision is in conflict with favorable marriage rulings in virtually every court to this point, including the 4th, 7th, 9th and 10th Circuits and a strong majority of the American people.
The Michigan plaintiffs, April DeBoer and Jayne Rowse, who challenged the voter-approved ban on gay marriage, have been fighting for more than two years for the right to marry and adopt each other’s special needs children. They and Dana Nessel and their legal team gathered at Affirmations Community Center in Ferndale Thursday, saying they will now appeal to the U.S. Supreme Court.
“The decision that we got today was a little bit on the disappointing side but we stand before you to tell you that we are going to continue to fight, and fight for the rights of our children. We will do whatever it takes to ensure that our children have rights here in Michigan and children like ours all over the states,” April DeBoer said. “We were hopeful that the decision would come back in our favor. But we were also prepared, in the event that it didn’t.”
Rowse, the devoted parter of DeBoer, followed in a statement for the LGBT community: “There are many people out there who are in Ann Arbor, Lansing and all the other places that I’m sure are gathering and are behind us saying their prayers and knowing that this is going to go forward. We are so proud to represent all of you, all of your families that are just like our family.”
Nessel said, “We’re going straight to the Supreme Court.” Nessel is the lead attorney for the two Michigan women. “We feel absolutely confident that the U.S. Supreme Court will accept one of the cases out of the 6th Circuit, most likely Michigan’s or Kentucky’s.
“We feel the Supreme Court was waiting for this,” Nessel continued. “We’re looking forward to this issue being resolved once and for all in this country, and I have every confidence that by the end of June 2015, there will be marriage equality in all 50 states.”
In March, U.S. District Judge Bernard Friedman declared the Michigan ban unconstitutional, but Michigan Attorney General Bill Schuette appealed, arguing traditional marriage and the will of the voters needing to be upheld.
The 2-1 vote by the 6th Circuit concluded that the definition of marriage should be left to the voters – not judges – and that voters should be allowed to decide whether gay marriage is a good idea or not.
“Of all the ways to resolve this question, one option is not available: a poll of the three judges on this panel… Our judicial commissions did not come with such a sweeping grant of authority, one that would allow just three of us – just two of us in truth – to make such a vital policy call for 32 million citizens who live within the four states of the 6th Circuit,” the federal appeals court wrote in its 68-page opinion.
The panel called the same-sex marriage dispute a “case about change – and how to best handle it under the United States Constitution.”
“From the vantage point of 2014, it would now seem, the question is not whether American law will allow gay couples to marry; it is when and how that will happen,” the appeals court wrote. ” … for better, for worse … marriage has long been a social institution defined by relationships between men and women. So long defined, the tradition is measured in millenia, not centuries or decades.”
In a scathing dissent, Judge Martha Craig Daughtrey wrote, “The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy.”
Daughtrey said that the court’s decision “wholly fails to grapple with the relevant constitutional question in this appeal: whether a state’s constitutional prohibition of same-sex marriage violates equal protection under the Fourteenth Amendment.”
She concluded her remarks by saying, “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, as well as the oaths to which we swore, prove to be nothing but shams.”
Reactions Swift, Strong
Reactions have been strong and swift, including from U.S. Rep. Dan Kildee (D-Flint). “Today’s ruling stands contrary to over two dozen recent court rulings in favor of marriage equality,” said Kildee in a press release posted minutes after the ruling was announced. “From trial courts to federal appeals courts, judges across our nation have reached the same conclusion: that marriage is a fundamental right that cannot be denied to same-sex couples. Yet Michigan Governor Rick Snyder and Attorney General Bill Schuette continue their ideological crusade against loving Michigan families at taxpayer’s expense.”
Gov. Snyder issued a statement saying, “When I became governor, I took an oath to support and defend our state constitution, without exceptions. My obligation to carry out that oath is not a matter of personal preference. As I have said throughout this process, I will respect the court’s decision as it examines the legality of same-sex marriage.
“The 6th U.S. Circuit Court of Appeals has upheld the language in our state’s constitution. This means there is no change in Michigan’s marriage laws. As I have previously stated, the same-sex couples who married at county clerk offices in the period between U.S. District Judge Bernard Friedman’s ruling in March and the 6th U.S. Circuit Court of Appeals’ temporary stay of that ruling, were legally married. However, the Court of Appeals decision does not allow for state benefits of marriage for those same-sex couples in accordance with our state constitution. That decision only can be changed if today’s Appeals Court ruling is overturned.”
Jay Kaplan, staff attorney with the Michigan ACLU LGBT Project, said the 6th Circuit Court’s decision should not have an impact on Casper v Snyder, a lawsuit filed by the ACLU against the State of Michigan that argues the state must recognize the over 300 legal same-sex marriages performed Mar. 22 immediately after the ban was struck down. “DeBoer is about the right of same-sex couples to marry. Casper is about the due process right of same-sex couples to stay married,” said Kaplan who blasted the 6th Circuit’s decision. “Judge Sutton’s main premise is that the courts should not be the ones looking at the constitutionality of these marriage bans, that this is for the legislature and the people to decide. He seems to forget that we have three branches of government, including the judiciary that provides checks and balances, and that one of the most important functions of the judiciary is to protect people from the tyranny of the majority.”
Ingham County Clerk Barb Byrum, who married the first same-sex couple in the state on March 22, arrived at at the Lansing gathering. “I’m actually shocked that our appeals court would uphold discrimination,” Byrum said. “One of my brides has passed away while waiting for her marriage to be recognized by the state.”
Dan Levy, director of law and policy at the Michigan Department of Civil rights, was also on hand at the Lansing gathering and told BTL he was disgusted. “Clearly there are enough politicians who think that the majority overrules the constitution. I had hoped the same could not be said of judges.”
Michigan For Marriage is a broad coalition that has formed to educate and raise awareness about the marriage ban and has been working on a plan to fight it. Learn more at http://www.michiganformarriage.org