JURIST Guest Columnist Robert A. Sedler, of Wayne State University Law School, discusses the constitutionality of Michigan’s ban on marriage for same-sex persons …

In Caspar v. Snyder, decided on January 15, 2015, Judge Mark A. Goldsmith of the US District Court for the Eastern District of Michigan issued a preliminary injunction and held that Michigan was required to recognize 323 marriages for same-sex persons that took place during a brief window of a few hours on March 22, 2014. Around 5:00 PM on Friday, March 21, 2014, Judge Bernard A. Friedman of the US District Court for the Eastern District of Michigan, issued his decision in DeBoer v. Snyder, holding that Michigan’s ban on marriage for same-sex couples violated the Fourteenth Amendment. The next morning, Saturday, March 22, 2014, four county clerks opened their offices and issued marriage licenses to these 323 couples. The “stay window” closed in the afternoon of March 22, 2014, when the US Court of Appeals for the Sixth Circuit issued a temporary stay of that order pending appeal. After the Sixth Circuit granted a full stay pending appeal, Michigan Governor Richard Snyder, the defendant in the DeBoer case, publicly announced that although these were legal and valid marriages, Michigan would not recognize these marriages or provide any benefits to the married same-sex couples unless the stay was removed or Judge Friedman’s decision was upheld by a higher court on appeal.

In finding that the plaintiffs were likely to prevail on the merits of their claim, Judge Goldsmith invoked the due process clause and the fundamental right of marriage. The judge focused on marriage as a fundamental right under the due process clause and stated that this case implicated the right to maintain one’s marital status once it has been lawfully acquired under the laws of the state seeking to defeat it. The liberty interest represented by the marriage relationship is an ongoing interest, one of committed intimacy that hopefully will last as long as the both parties live. And the defendants did not argue, as they could not, that the denial of benefits or rights to married persons “eviscerates that status” and makes them the functional equivalent of unmarried persons.

The judge went on to point out that Michigan’s refusal to recognize the martial status of persons lawfully married pursuant to marriage licenses issued under Michigan law as it stood at the time the marriages were solemnized was completely unprecedented. He noted that the state defendants failed to provide a single court decision that approved of a state’s efforts to vitiate the marital status of a couple lawfully married under that state’s law. He then cited and discussed “a long history of decisions and legislative enactments, under a variety of theories, reflecting a national consensus rejecting the view that a person’s marital status may be invalidated by a state after it was lawfully acquired under a state’s law.” One aspect of this history was “plethora of court decisions that interpret statutes modifying marriage-eligibility requirements so as to exempt marriages that would otherwise be invalidated under the change in the law.” They included: a change in Arizona law that now declared void out-of-state marriages between first cousins, which was interpreted as prospective only so as not to destroy the “vested rights” in existing first cousin marriages; a New York court interpreting a statute abolishing common law marriage as applying prospectively only; a US Court of Appeals for the Second Circuit case interpreting as prospective only a change in New York law voiding a subsequent marriage based on the disappearance of a spouse unless the prior marriage had been terminated by divorce and the decision of the California Supreme Court holding that a voter-adopted state constitutional amendment prohibiting the recognition of marriages between same-sex persons (subsequently declared to be unconstitutional) did not apply to the estimated 18,000 same-sex couples who had married after the issuance of the earlier court decision recognizing their right to marry. There were also a number of statutory amendments for existing marriages in the face of laws changing marriage requirements,.

Judge Goldsmith then concluded that there was a consensus that the right to the continued validity of a marriage was “deeply rooted in this Nation’s tradition,” so long as the marriage was authorized at the time it was solemnized under the law of the state that now was seeking to defeat it. Thus, this right could only be defeated by a narrowly tailored and compelling state interest and the interests asserted by the State of Michigan, such as that if Judge Friedman’s decision was not upheld on appeal, these marriages were void ab initio, were rejected.

It may be noted that an identical decision was reached last May by the US District Court for the District of Utah in Evans v. Utah, involving the validity of marriage licenses issued to same-sex couples in Utah, between December 20, 2013, when the federal court declared Utah’s ban on marriage for same-sex persons unconstitutional, and January 6, 2014, when the US Supreme Court stayed that decision pending appeal.

Judge Goldsmith specifically made it clear that his decision in Caspar v. Snyder was unaffected by the ultimate result in DeBoer v. Snyder. That is, the decision in Caspar involved the right to maintain an existing marriage, not the right to acquire the status of being married, which is the issue involved in DeBoer.

Interestingly enough, on January 17, the day after Judge Goldsmith’s decision, the US Supreme Court granted certiorari in DeBoer and three other cases coming from Ohio, Tennessee and Kentucky that had been decided by the Sixth Circuit together with DeBoer. The court’s ruling on these cases had held that the Fourteenth Amendment did not require the states to license marriages between same-sex persons or to recognize such marriages that took place in another state. The court will render a decision in these cases at the end of its current term in June 2015.

We are hopeful, of course, that the Supreme Court will hold that the Fourteenth Amendment embodies the value of marriage equality and requires Michigan and every other state to license marriage between same-sex persons. But one never can say with certainty what the Supreme Court will do until it does it and any prediction about a Supreme Court decision is necessarily speculative. Judge Goldsmith’s decision in Caspar v. Snyder seems clearly correct and ensures that howsoever the Supreme Court will decide DeBoer v. Snyder, the 323 Michigan couples who married in Michigan during the “stay window” will continue to be married.

Robert A. Sedler is Distinguished Professor of Law at Wayne State University Law School in Detroit, Michigan. He received an AB from the University of Pittsburgh and a JD from the University of Pittsburgh School of Law. He is one of the lawyers for the plaintiffs in DeBoer v. Snyder, which is now challenging the constitutionality of Michigan’s ban on marriage for same-sex persons before the United States Supreme Court.

Suggested citation: Robert A. Sedler, Michigan Must Recognize “Stay Window” Marriages, JURIST – Academic Commentary, Jan. 26, 2015, http://jurist.org/forum/2015/01/robert-sedler-michigan-marriage.php.