A panel of three federal judges, all appointed by George W. Bush, were split 2-1 about issuing a stay of the U.S. District Court’s ruling that Michigan must allow same-sex couples to marry. Circuit Judge John M. Rogers and Kentucky Chief District Judge Karen Caldwell voted to grant the state’s motion for a stay, while Circuit Judge Helene White dissented.
The approach of the majority seemed to be “Ours is not to reason why,” as they punted on applying the four-factor test that courts in the 6th Circuit normally apply in determining whether to stay a district court ruling pending appeal.
The four factors are: (1) whether the defendant has a strong or substantial likelihood of success on the merits; (2) whether the defendant will suffer irreparable harm if the district court proceedings are not stayed; (3) whether staying the district court proceedings will substantially injure other interested parties; and (4) where the public interest lies. Rather than evaluating these factors, the court said “these factors balance no differently than they did in Kitchen v. Herbert,” the Utah marriage case. In that case, the Supreme Colurt ordered a stay. Thus, the majority of this panel punted to the Supreme Court, saying, “There is no apparent basis to distinguish this case or to balance the equities any differently than the Supreme Court did in Kitchen.” They also noted that several district courts in other cases had stayed their rulings, including a Kentucky case headed to the 6th Circuit on appeal.
The problem is that the Supreme Court provided no explanation of how it had weighed the factors, or even whether it had done so. And so Judge White, finding no guidance in the Kitchen ruling, went ahead to weigh the factors herself. “Michigan has not made the requisite showing,” she wrote. In light of the lack of specific guidance from the high court, “I would therefore apply the traditional four-factor test, which leads me to conclude that a stay is not warranted.”
What nobody can bring themselves to say explicitly is that when issues like this get to the Supreme Court, the decision to issue a stay is as much a political decision as a legal decision and, indeed, in this case the Supreme Court provided no legal reasoning because it seems that its decision to stay the Utah ruling was political. Any honest evaluation of the traditional four factors would produce little support for the stay, in light of the Supreme Court’s ruling in U.S. v. Windsor.
But there we have it. No more same-sex marriages in Michigan until there is a final appellate resolution. Although this 6th Circuit panel granted the motion to stay the district court’s order “pending final disposition of Michigan’s appeal by this court,” nobody can believe that the stay would immediately end if a 6th Circuit panel affirms Judge Bernard Friedman’s decision, for such a 6th Circuit ruling would be stayed to allow the state time to petition the Supreme Court for certiorari, and then stayed pending disposition by the Supreme Court. However, it seems likely that the 10th or 9th Circuits will render decisions that work their way to the Supreme Court before the 6th Circuit does, since the 10th Circuit will hear arguments in April in the Utah and Oklahoma cases and the 9th, which is on an expedited schedule with the Nevada case, should be hearing arguments soon after. The 4th Circuit may also decide the Virginia case before the 6th gets to Michigan (and Kentucky and Tennessee). Nobody knows which case will ultimately get to the Supreme Court. But as a practical matter, it seems likely that same-sex marriages will not resume in Michigan until the Supreme Court issues a ruling on marriage equality, most likely in the spring of 2015.