By:  Timothy P. Flynn

You need to be an appellate lawyer to follow the recent high-speed developments in the same-sex marriage jurisprudence coming to a rapid boil across the country.  The principal case here in Michigan has had some complicated procedural developments over the past few weeks; we will break it down for you if we can.

As those that follow the news, and this blog well know, U.S. District Court Judge Bernard Friedman issued an opinion and order declaring Michigan's state constitutional ban to be a violation of the Equal Protection clause of the United States Constitution.

In conjunction with Governor Snyder, Michigan's Attorney General has aggressively pursued the state's appellate options in the DeBoer same-sex marriage and adoption case.  Since losing the case at trial, Attorney General Bill Schuette has done what any state actor appellate attorney would do: a) seek a stay of the trial court's ruling pending a resolution of the inevitable appeal, and b) expedite this inevitable appeals process by requesting what is inconveniently referred to as an "en banc" appeal.

These filings by the Michigan Attorney General make a lot of sense.  And the United States Court of Appeals for the Sixth Circuit seems willing to play along.

First, consider that the Sixth Circuit immediately granted the AG's motion for an emergency stay, so Judge Friedman's ruling is held in abeyance for the time being; no more legal gay marriage licenses can be issued in Michigan.

Second, we here at the Law Blogger happen to think that AG Schuette's latest motion for en banc review makes a lot of procedural sense.  Generally, when a litigant loses a trial, our system of justice provides for a second look; the trial judge is not the final word in any given case.

When a losing litigant becomes an appellant, the case is assigned, in both state and federal courts, to a 3-judge panel to decide the matter via majority vote.  The party that loses an appeal has the option to inveigh the entire appellate court; an en banc appeal.  In the case of the Sixth Circuit, that includes 23 judges.

Most appellate litigants that apply for en banc consideration are rejected.  Rather than suffer this procedural rejection, many appellate litigants elect to push on the the High Court; the United States Supreme Court.

Not so with the DeBoer case; a case that has profound constitutional significance and that has become a symbol of the civil rights struggle of our time.  Attorney General Schuette is correct to seek en banc review rather than intermediate appellate review from a 3-judge panel; why waste the time and resources.

There is no doubt that this case, along with select others from across the nation, will be ultimately decided by the SCOTUS, as in the United States v Windsor decision.  Like the abortion issue that preceded it, the same-sex marriage issue will be a deep and rich jurisprudence that will flesh-out over time.

Cutting to the chase, as the Michigan Attorney General wants to do, makes a whole lot of sense.

www.clarkstonlegal.com
info@clarkstonlegal.com