Last fall, when U.S. District Court Judge Bernard Friedman struck Michigan's state law ban on same-sex marriage and adoption as unconstitutional, dozens of county clerks' offices had their counters ready to issue marriages licenses to same-sex couples.  Some 300 couples were issued marriage licenses the very next day before the Sixth Circuit Court of Appeals stayed the decision pending appeal, swiftly closing the door on the issuance of additional marriage licenses to same-sex couples.

This appellate stay placed these presumably valid same-sex marriages in a legal limbo.  Enter the ACLU, who sued to enjoin the State of Michigan to recognize the marriages.  The case was assigned to federal judge Mark Goldsmith who ruled yesterday that any same-sex couple that was issued a marriage license has a valid marriage that now must be recognized by the state.

Judge Goldsmith's ruling comes a day before legal scholars predict that the SCOTUS, in their case conference this morning, may decide to grant certiorari in the April DeBoer case and the other consolidated cases from the Sixth Circuit; the only appellate circuit to uphold the constitutionality of state law bans on same-sex marriage.

Interestingly, Judge Goldsmith's decision plays on a Bible verse in upholding the validity of the marriage licenses issued by the county clerks. His decision states that, "under these circumstances, what the state has joined together, it may not put asunder."

Constitutional considerations aside, the judicial math was simple in this case: once a marriage license is issued by an arm of the state, Judge Goldsmith ruled that the state cannot withdraw the status it has granted.  To rule otherwise, said Goldsmith, would "catastrophically undermine the stability that marriages seeks to create", to say nothing of the damage done to the principle of certainty in the law.

No word from the Michigan Attorney General or the Governor whether it will appeal Goldsmith's decision. Meanwhile, the SCOTUS could advance the agenda today with an order granting the petition for certiorari in the consolidated DeBoer cases.

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Colasanti and Ryder outside
Oakland Circuit Court in March

We here at the Law Blogger could not help but notice that same sex couple Frank Colasonti, Jr. and James Ryder were in federal court yesterday before U.S. District Judge Mark Goldsmith seeking injunctive relief to force the state to recognize what they say is a 25-year marriage.  The Oakland County couple were one of more than 300 to get married in Michigan immediately following federal judge Bernard Friedman's March 21st ruling that struck down our state constitutional ban of same-sex marriage.


The gay couple's attorney, University of Michigan Law Professor Julien Mortenson, was quoted in the Freep as saying, "the state cannot mandatorily divorce you."  Professor Mortenson asserted that the couple was properly married following Judge Friedman's ruling and that status cannot be undone, even if the SCOTUS reinstates Michigan's constitutional ban on gay marriage.

Ever since the 5-4 SCOTUS ruling in United States v Windsor in 2012, same-sex marriage advocates and the ACLU have argued in lower courts across the nation that the case applies to states' power to ban same-sex marriage; the argument is that Windsor's holding should be applied to the states such that any state constitutional ban or other law based on a sexual preference classification, is unconstitutional under the United States Constitution.

Problem:  the Windsor case did not apply to state laws; only federal benefits that were being denied to Ms. Windsor due to a sexual preference classification.  Most of the post-Windsor cases involve state constitutional bans against same-sex marriage.

In the case of the Oakland County couple, Colasanti, a retired school administrator, is unable to name his partner of more than a quarter-Century as the surviving spouse on his state pension.  Other Michigan same-sex couples have filed suit because the ban on same-sex marriages has affected couples' rights to obtain insurance benefits, to adopt children, and other rights enjoyed by heterosexual Michiganders.

Inevitably, this civil rights issue is heading to the SCOTUS.  But the High Court is being very selective about which case(s) it will select for briefing and argument.

In recent weeks, SCOTUS has denied pleas from Virginia and Utah same-sex marriage couples who, like here in Michigan, were legally married in the short period between the issuance of a pro-same-sex marriage decision in federal court and the issuance of an injunctive stay pending appeal.  The cases from Utah may be ready for a full SCOTUS review in the next term.

The High Court  -in denying the emergency injunctive relief requests to recognize the marriages of those couples lucky enough to squeeze through the county clerks' offices before the appellate stays were issued-  is clearly signaling a desire for an orderly appellate review process.  Everyone knows that right case is on its way to that Court.

Each of these cases pit our civil right to marry the person of our choice against a state's power to legislate such matters, often via voter-approved referendum or initiative.  That is why this blog describes it as the civil rights struggle of our time.

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