Jay Kaplan, LGBT Project Staff Attorney
Today could be a big day for marriage equality in Michigan.
Judge Bernard Friedman of the United States District Court for the Eastern District of Michigan will hear arguments and may issue a decision in a lawsuit filed by an Oakland County lesbian couple challenging Michigan’s marriage ban.
The ACLU filed a friend-of-the-court brief supporting the argument that denying Michigan families marriage and second parent adoptions is unconstitutional.
The couple, who have been together for more than a decade and who would like to both share legal responsibility for their children in the form of a second-parent adoption, amended their adoption lawsuit in September 2012 to challenge the marriage ban as well.
A lot of rumors have been swirling around about what it would mean for couples wishing to get married if Judge Freidman strikes the marriage ban from Michigan’s constitution.
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While there are many ways in which Judge Friedman could decide the case, we’d like to clarify one scenario in which couples may be given a small window of opportunity to get married following his ruling.
When judges rule, they have the option of issuing a “stay” which would put their decision on hold because they know that an appeal is likely. If a judge chooses not to issue a “stay,” the losing side can still ask the Court of Appeals to do so. Unless and until the Court of Appeals issues a stay, the lower court ruling remains in effect.
Following this logic, if Judge Friedman issues a favorable decision striking down Michigan’s marriage ban and does not stay his decision immediately, he may create the much talked about window for gay couples to get married legally in this state. That window might last for a few minutes, hours, or days before the Sixth Circuit Court of Appeals rules on whether a stay should be granted while the State of Michigan pursues an appeal.
While this would be very exciting, it’s important to consider the risks and benefits of getting married during this period of time. To that end, we’ve included answers to several questions below that may help couples make an informed decision if this hypothetical situation becomes a reality.
All of these answers are based on the assumption that Judge Friedman will strike down Michigan’s ban and will not put his decision on hold immediately. For specific legal advice about your situation, we suggest you consult with a lawyer before marrying in Michigan or elsewhere.
1. If we get married before a stay is put in place, are we legally married in Michigan?
Yes, you are legally married. However, the validity of your marriage could be in legal limbo for a year or more pending the outcome of an appeal. In other words, in the event that the Sixth Circuit Court of Appeals does not agree with Judge Friedman and reverses his favorable decision, your marriage could be voided by the appeals court. It’s also possible that the State will not respect your marriage until the case is finally decided.
2. What if the Sixth Circuit Court of Appeals reverses Judge Friedman’s decision, will our marriage be invalidated?
It’s likely that marriages conducted during this period – as happened in California after Mayor Newsome’s decision that it was unconstitutional to deny people the freedom to marry-- would be invalidated if the Sixth Circuit Court of Appeals reverses a favorable ruling in the district court. However, additional litigation may be needed to answer this question.
3. If we get married in Michigan during this window, can we get married in another state or country while the case is put on hold?
It’s unclear. Some states allow couples to get legally married in multiple states at the same time, but some do not. It’s important that you check the law of the state(s) where you are considering getting married before marrying in Michigan. The answer may also depend on whether or not your Michigan marriage is viewed as valid after the appeals process.
4. Can we access federal protections if we get married now?
Maybe. You may be able to access federal benefits associated with marriage, particularly those federal programs that define a marriage based on the law of the place where you get married, at least until the Court of Appeals rules. Whether your marriage remains recognized by the federal government would depend on what the Court of Appeals decides about the validity of the marriages issued during this time period.
With regards to those federal programs that define a marriage based on the law in the state where you currently live, you might be able to access those benefits as well. If Judge Friedman’s decision is reversed by the appeals court, your eligibility for those federal benefits could change and could result in those benefits being discontinued. However, if you choose to get married in another state, federal protections that are based on the place of celebration will not be in jeopardy but it's important to research federal marriage protections.
5. Will Michigan respect our marriage and grant us state benefits if we get married now?
An argument could be made that you are entitled to state benefits because as you are legally married while the case is pending on appeal. However, it’s unclear what the State will do, and additional litigation may be needed to address this question.
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