Ryan Fishman is an attorney at the Southfield-headquartered Fishman Group, P.C. You can also find complaints, musings, and answers to your legal questions from the former reporter, talk show host, one-time candidate for office, and in Yiddish what you might call a bit of a ‘kvetch,’ at www.thefishmangroup.com.
Ryan Fishman
By Ryan Fishman
Tomorrow we’ll learn whether the U.S. Supreme Court will hear the challenge to Michigan’s gay marriage ban that’s drawing national attention after an historic ruling last March from U.S. District Judge Bernard Friedman that briefly gave gay marriage the green light across the state, if only for a few hours.
Ever since, some 300 plus couples have had to wonder about the legal status of their marriages, with the Governor declaring they would not be recognized and the Sixth Circuit Court of Appeals later upholding the ban.
There’s also April DeBoer and Jayne Rowse, the couple whose nuptials and attempted adoptions set off the legal fire storm challenging the 2004 Michigan Marriage Amendment, which describes marriage as between “one man and one woman.”
There’s plenty that makes this case interesting – from the outrageously unscientific “expert” witness testimony offered by Attorney General Bill Schuette to the rush by Democratic county clerks to certify marriages just hours after the decision. But ultimately what has most of us so intrigued is whether this will be the case that makes marriage equality law from sea to shining sea.
Today, in 35 states same-sex couples have the absolute and unqualified freedom to marry.
In five states – Alabama, Georgia, Nebraska, North Dakota and South Dakota – lawsuits have been filed challenging their ban on gay marriage.
In five more – Arkansas, Louisiana, Mississippi, Missouri, and Texas – federal courts have struck down a ban and appeals are pending.
And then there’s Ohio, Kentucky, and Tennessee, where, like here in Michigan, the Sixth Circuit has upheld a ban on marriage.
Six Circuit Is Notorious For Being Overturned
It’s worth nothing the Sixth Circuit is notoriously the most overturned federal appellate court in the country. As a matter of fact, over the last five annual terms, the Supreme Court reversed decisions from our illustrious Court of Appeals in 24 out of 25 cases. We’ve also seen every other federal circuit court in the country rule a ban on gay marriage is unconstitutional. If nothing else, the odds appear to be in the plaintiffs’ favor.
But before the Supreme Court can do what it does best with a decision from Sixth Circuit, it needs to agree to hear the case, which, worth noting, also challenges the court’s decisions in Ohio, Kentucky, and Tennessee. If it declines to hear the case, the Michigan law remains “constitutional” and the prohibition on gay marriage stands in all four states.
If the justices decide to hear the case, most legal observers – myself included – believe they’ll be pressed to actually make a decision with national implications for marriage equality.
There are a few things that make DeBoer v. Snyder unique, perhaps most notably the case challenges the voter-approved ban on marriage, not just the failure to recognize marriages performed in other states. In this case there was also a trial in District Court, where other federal courts have issued a ruling after simply reading written arguments filed by the parties.
And then there’s Bill Schuette, who has vigilantly fought to keep gay marriage illegal in Michigan, as if it were, for lack of a better word, his duty.
In most states, the powers that be, declined to pursue an appeal once the decision to toss out their ban was issued by a federal court judge like Judge Friedman in Detroit. That’s one reason we’re yet to see a decision from the Supreme Court on the issue.
Here our overzealous Attorney General has committed his office to spend countless hours and thousands upon thousands of your hard-earned tax dollars on his fight for religious freedom while Wayne County can barely afford to test thirty-year-old rape kits… but that’s a subject for a different column.
The bottom line, we’ll know tomorrow whether the high court has finally found the courage to actually rule on the issue, instead of punting away controversy the way it did with California’s Prop 8. Ultimately, for the sake of sanity, and more importantly, families here and in every state, I can only hope they have.
