Mich. same-sex marriages 'legal but not recognized.’ How did that happen?

Some 300 same-sex couples wed in Michigan Saturday after a federal judge found the state ban on such marriages unconstitutional and before his ruling was stayed. The governor said the unions, while legal, won't be recognized by the state.

Chad Livengood/The Detroit News/AP
Greg McNeilly (l.), of Grand Rapids, married his longtime partner Doug Meeks, of Lansing, outside the Ingham County courtroom of Judge William Collette, March 22. McNeilly is a prominent Michigan Republican Party strategist.

The status of Michigan’s same-sex marriage laws, and of the 300 such marriages performed in the state Saturday, were both in limbo Wednesday following a federal appeals court ruling and the governor’s declaration that the unions were legal but would not be recognized by the state.

But if Michigan now finds itself in the same boat as four other states whose same-sex marriage bans were overturned as unconstitutional but are still in force following legal stays by higher courts, the couples who were married during a brief legal window are in less-well-charted territory.

On Friday US District Judge Bernard Friedman ruled that Michigan’s ban on same-sex marriage violated equal protection guarantees under the Constitution. But unlike other federal judges who found other states' bans unconstitutional, Judge Friedman did not stay his own ruling in anticipation of a lengthy appeals process.

On Saturday 321 marriage licenses were issued to same-sex couples in four Michigan counties, and about 300 marriages were performed, before the Sixth Circuit Court of Appeals issued a temporary stay. Late Tuesday it extended the stay indefinitely while it considers the state’s appeal of Friedman’s ruling.

That set the stage for the seemingly inconsistent statement Wednesday by Gov. Rick Snyder (R), who said that while the marriages will remain legal, the couples will not be granted marital benefits as long as the stay remains in place.

“With respect to the marriages, we believe those are legal and valid marriages. The stay being issued makes it more complicated,” he told reporters Wednesday. “The couples with certificates of marriage from Michigan courthouses last Saturday were legally married and the marriage was valid when entered into. Because the stay brings Michigan law on this issue back into effect, the rights tied to these marriages are suspended until the stay is lifted or Judge Friedman’s decision is upheld on appeal.”

State attorneys have until May 7 to make their case to the appeals court on why last Friday’s ruling should be reversed; attorneys for the plaintiffs will then have a month to challenge those arguments.

The attorney for plaintiffs April DeBoer and Jayne Rowse, the couple who challenged the state ban because they cannot jointly adopt their three children under state law, says that the growing number of states where bans have remained struck down does not necessarily create the likelihood that the same will take place in Michigan.

“This isn’t a political issue and it shouldn’t be political issue. It is a legal issue,” says Dana Nessel. “Whether 1 percent or 99 percent of the population support gay marriage, it doesn’t change the fact that these laws are unconstitutional. It is really incumbent upon the [US] Supreme Court to take this issue on so we don’t have this patchwork issue in this country and can have equality in all 50 states.”

Ms. Nessel told the Associated Press she was outraged by Governor Snyder’s position.

“I think each one of those couples should be furious right now, and I’m very hopeful that those couples will petition the court on their own behalf,” she said.

Snyder has shied away from declaring a stance on same-sex marriage, or if he supported the 2004 voter-supported ban at all. In 2011, he signed a law denying health benefits to civil partners, but framed the issue as an economic one that would help the state save money.

Friedman is the seventh federal judge to rule against a state ban on same-sex marriage since the US Supreme Court ruling last year against the federal Defense of Marriage Act (DOMA). While 17 states and the District of Columbia now issue marriage licenses for same-sex couples, Utah, Texas, Oklahoma, Virginia, and now Michigan have appealed such rulings, putting the issue on hold.

John Dinan, a political scientist at Wake Forest University in Winston-Salem, N.C., says that a reason for these continual stays is the failure by the Supreme Court to directly rule whether or not state bans violate the equal protection clause in the Constitution.

Instead, the court’s rulings last year only dealt with the specifics of a ban in California, and the DOMA ruling that said Congress cannot treat same-sex couples differently than opposite-sex couples. That ruling provided same-sex couples in states where marriage is allowed all the federal benefits of heterosexuals in traditional legal marriages.

Neither ruling directly addressed the right of states to maintain bans enshrined in their constitution.

“So we don’t yet have a US Supreme Court ruling which means we have these district judges anticipating how they might rule it if came to them,” Professor Dinan says. “That’s what makes these cases distinctive and why we’re facing the situation we’re facing.”

of 5 stories this month > Get unlimited stories
You've read 5 of 5 free stories

Only $1 for your first month.

Get unlimited Monitor journalism.