UPDATE: And the appellate court has decided to stay the marriages of gay couples in Michigan until Wednesdsay, when it will make a decision on whether to stay them throughout the state’s appeal. Still, as I note below, it’s already too late. Reportedly over 200 gay couples were married in Michigan today. That adds a whole other element to the appeal, one that potentially works in our favor.
I try to refrain from using the exclamation point, but this is worth it. Gay couples are getting married in Michigan!
I’d reported last night that a federal court in Michigan struck down the state constitution’s gay marriage ban, while at the same time taking a huge swipe at the lead anti-gay “study,” which was conceived at the Republican think tank “The Heritage Foundation.”
Michigan is the 14th state in a row to have a gay marriage court victory following the Supreme Court’s ruling last summer in US v. Windsor, striking down a key provision of the federal Defense of Marriage Act (DOMA).
While the Windsor decision did not legalize gay marriage, many of us believed the language to be so broad that it would lead to such decisions in lower courts (thus permitting the issue to be resolved more slowly than in one fell swoop in a Supreme Court decision, perhaps making it more politically palatable to the public).
In Michigan this morning, we appear to be having a repeat of what happened in Utah last Christmas. Pending a decision on a stay from the appellate court, people are getting married. In Utah, those marriages took place for a good two weeks before the courts stepped in and said “wait until we issue a final ruling.”
The reason this matters is because now the cat’s out of the bag. It would be one thing for an appellate court to overturn a lower court ruling in favor of gays getting married. It’s another thing entirely for the appellate court to overturn thousands of actual marriages, in many cases affecting children.
And it gets even more complicated than that. If the court permits those already-married to stay married, while telling other gay couples that they can’t get married, the wanting-to-get-married gay couples would have an equal protection claim under the federal Constitution: Why are some gay couples permitted to be wed under state (possibly) and federal (certainly) law in Michigan while some are not? The Constitution tends to frown on treating identical people differently without very good reason.
Here are some great images of the Michigan weddings by Chris Savage and others on Twitter: