WASHINGTON — The impact of the shifting court rulings on same-sex couples' marriage rights was made unambiguously clear by Michigan Attorney General Bill Schuette in a Friday night court filing: "[F]rom a legal standpoint," he wrote of the same-sex couples who got married in the state this March, "it is as if the marriages never existed."
Should the judge in that case decide now whether Michigan must recognize the marriages entered into by same-sex couples there on March 21 and 22, Schuette argued, the marriages should be found to be void and Michigan should not be ordered to treat the couples as married.
The filing came even as other same-sex couples went to the Supreme Court on Friday — with more filings expected Monday — asking the justices to take up an appeal of the issue and bring nationwide resolution to the questions of whether same-sex couples have a constitutional right to marry and have their marriages recognized.
The filing from Schuette came in a case brought by the ACLU this summer, asking a court to order Michigan to recognize the marriages of those couples immediately. However, after the 6th Circuit Court of Appeals last week reversed the trial court ruling that had led to those couples being allowed to marry, the court in this secondary case asked the state and plaintiffs to tell the court how the 6th Circuit decision in DeBoer v. Snyder impacted their case.
The state argued that its first choice was for the court to put the secondary case on hold until the DeBoer case is resolved. Though, if the court does decide the secondary case, Caspar v. Snyder, now, the state is seeking a stark result: voiding the marriages that the state granted to same-sex couples earlier this year.
"It has been [the state's] position from the outset of this litigation that Plaintiffs' marriages were conditionally valid; the condition being the affirmance of the district court's decision in DeBoer, which established the sole premise for the legality of Plaintiffs' marriages," the state lawyers wrote. "Now that the Sixth Circuit has reversed the district court's decision in DeBoer, that condition cannot be met, and Plaintiffs' marriages are therefore void."
The state continued: "[T]he unqualified reversal by the Sixth Circuit in DeBoer nullifies the district court's decision completely, and it is as if the legal premise upon which Plaintiffs' marriages are based never existed." As such, "because the marriages rested solely on the district court's erroneous decision, which has now been reversed, it is as if the marriages never existed," the state concludes.
After a stay was issued of the trial court's order in the DeBoer case, which stopped any more same-sex couples from marrying, Gov. Rick Snyder — who Schuette is representing in both cases — stated, "After comprehensive legal review of state law and all recent court rulings, we have concluded that same-sex couples were legally married at county clerk offices in the time period between U.S. District Judge Freidman's ruling and the 6th U. S. Circuit Court of Appeals temporary stay of that ruling."
Nonetheless, in Friday's filing Schuette claims that "it is, and has been, Defendants' position that a reversal of DeBoer by the Sixth Circuit renders Plaintiffs' marriages void." If the court disagrees, however, the state provides the court with a third option: Because the 6th Circuit DeBoer decision also rejected recognition claims from other states, recognition of same-sex couples' marriages is not constitutionally required in Michigan. As such, the state need not — and under its now-reinstated laws, cannot — recognize the marriages that it granted earlier this year.
"Plaintiffs' argument for recognition of their marriages is more tenuous than the arguments set forth in the companion cases to DeBoer because Plaintiffs' marriages were never sanctioned by the public policy of any State," the state argued of the March marriage licenses issued to same-sex couples in Michigan. "Instead, the marriages occurred when the district court incorrectly invalidated Michigan's public policy."
The plaintiffs are to respond by Nov. 21, at which point the court will decide whether a hearing on the issue is needed.
Meanwhile, on Monday the plaintiffs in the primary Michigan marriage case — April DeBoer and Jayne Rowse — are expected to file their petition at the Supreme Court asking it to hear their appeal, reverse the 6th Circuit decision, and resolve the issue once and for all.