U.S. District Court Judge Mark Goldsmith has ruled in Caspar v. Snyder that even though the U.S. Court of Appeals for the 6th Circuit reversed a trial court marriage equality ruling last year, more than 300 couples who married in the brief period time between that overruled decision and the 6th Circuit’s grant of a stay pending appeal are entitled to have their marriages recognized by the state. Rejecting the state’s argument that the 6th Circuit ruling effectively invalidated the marriages, Judge Goldsmith commented in his January 15 opinion, “what the state has joined together, it may not put asunder.” Just one day later, the Supreme Court announced that it will be reviewing the 6th Circuit’s decision this term.
A different district judge, Bernard Friedman, ruled late on Friday, March 21, 2014, that Michigan’s ban on same-sex marriages violated the 14th Amendment. Several county clerks then announced that they would open their offices on Saturday, March 22, to issue marriage licenses to same-sex couples and perform wedding ceremonies, and several hundred couples rushed to take advantage of the opportunity. Later on that day, the 6th Circuit Court of Appeals granted the state’s motion to stay Judge Friedman’s ruling pending an appeal. Subsequently, on November 6, the 6th Circuit reversed Judge Friedman’s decision, holding that same-sex couples do not have a constitutional right to marry. The plaintiffs in that case petitioned the Supreme Court for review, and the Court granted review on January 16, as the 6th Circuit’s decision conflicts with rulings by the 4th, 7th, 9th and 10th Circuits, requiring a national resolution of the question presented in that case.
After the 6th Circuit issued its stay, Michigan Governor Rick Snyder issued a statement acknowledging that the roughly 300 marriages that were performed that Saturday morning were legal marriages, but in his view the stay meant that Michigan’s marriage amendment and statutory ban were back in effect and so the state could not and would not recognize those marriages unless the litigation was finally concluded in favor of the plaintiffs. This state of affairs was obviously unsatisfactory to the people who had gotten married. Several of those couples represented by the ACLU of Michigan filed a lawsuit seeking to compel the state to recognize their marriages. A second lawsuit was filed on behalf of people who were married in other states but live in Michigan, claiming that their marriages were also entitled to recognition. As part of his January 15 ruling, Judge Goldsmith rejected a motion to consolidate the two cases, asserting that they presented distinctly different issues.
Judge Goldsmith concluded that “the continued legal validity of an individual’s marital status is a fundamental right comprehended within the liberty protected under the Due Process Clause of the Fourteenth Amendment. Even though the court decision that required Michigan to allow same-sex couples to marry has now been reversed on appeal, the same-sex couples who married in Michigan during the brief period when such marriages were authorized acquired a status that state officials may not ignore absent some compelling interest — a constitutional hurdle that the defense does not even attempt to surmount.”
In other words, the state’s main argument in opposing this lawsuit was not that there was some compelling reason not to recognize these marriages. Rather, the state was arguing, among other things, that it was premature to recognize them until there is a final conclusion to the original marriage case, DeBoer v. Snyder, by the Supreme Court either denying review or deciding the case on the merits. But to Judge Goldsmith, once a clerk had issued a license and the marriage had been solemnized, it was a legal marriage, and the married couple had a right to be treated the same as all other married couples in the state unless the state had a compelling justification for treating them differently.
The state also mounted a barrage of procedural objections, including claiming that withholding recognition did not impose any harm that could not be remedied later on by monetary damages if the Supreme Court eventually reverses the 6th Circuit decision, obviating the need for the court to issue in injunction requiring recognition now. But Judge Goldsmith did not agree that the plaintiffs’ claim to recognition for their marriages turned on that eventual outcome. To be sure, if the Supreme Court reverses the 6th Circuit and holds that same-sex couples have a constitutional right to marry, the state’s continuing refusal to recognize these marriages would be unconstitutional. On the other hand, Goldsmith asserted, even if the Supreme Court upholds the 6th Circuit, those marriages would still be valid, because at the time the clerks were issuing those licenses and performing those ceremonies pursuant to a duly issued federal district court decision that had not yet been stayed or reversed on appeal.
Furthermore, held Goldsmith, the plaintiffs had adequately shown that the harms they suffered were not just monetary. There is a dignitary harm in being denied recognition of a lawfully-contracted marriage that cannot be compensated entirely by money, thus the plaintiffs are suffering an irreparable injury every day that the state denies recognition to their marriages, apart from the concrete refusal to allow certain of the couples to adopt a partner’s child or enroll in an employee benefits plan. In this connection, it is worth remembering that the DeBoer case originated in a refusal to allow a same-sex co-parent to adopt, and that monetary damages cannot possibly fully compensate somebody for being prevented from obtaining a legal status for their family.
Judge Goldsmith also rejected the state’s suggestion that requiring recognition of the marriages now, while the ultimate outcome of the DeBoer case remains in doubt, might lead to the awkward and difficult process of having to unravel these marriages if the 6th Circuit’s decision is upheld. The judge rejected the notion that the state would be entitled to try to recoup benefits or rescind insurance coverage retroactively in such a case, or that an affirmance of the 6th Circuit’s decision would necessarily mean that the marriages in question are invalid. A reversal of the original trial court ruling in DeBoer by the 6th Circuit did not mean that district court’s ruling was of no effect, he wrote, characterizing the state’s argument to that effect as “an oversimplified misstatement.” He pointed to other cases whether overturned trial court orders were nonetheless viewed retroactively as having legal effect until they were overruled.
As to Governor Snyder’s original statement that the 6th Circuit’s stay had “resurrected” the state’s marriage ban, Judge Goldsmith said, “Nothing in the DeBoer opinion addresses the right to retain one’s marital status in the face of the solemnizing state’s effort to invalidate it. That question was never argued in DeBoer or decided.” He wrote, “Plaintiffs acquired a marital status that Michigan bestowed upon them, and which Defendants – Michigan officials – themselves acknowledge was lawfully acquired at the time, pursuant to validly issued Michigan marriage licenses.”
However, realizing that the state might want to exercise its right to appeal his order, Judge Goldsmith granted a 21-day stay to give the state an opportunity to request a further stay pending appeal from the 6th Circuit and, if need be, the Supreme Court. So although he has ordered the state to recognize these marriages, the order may not actually go into effect until the Supreme Court decides the marriage question, rendering the order a bit academic at this point. Furthermore, the Supreme Court’s decision to review the 6th Circuit’s ruling gives that court more information upon which to decide whether a further stay should be granted.
ACLU attorneys representing the plaintiffs in this case include Jay D. Kaplan, Daniel S. Korobkin, Brook A. Merriweather-Tucker, and John A. Knight. Also participating for plaintiffs is Andrew W. Nickelhoff, a Detroit attorney at Sachs Waldman P.C. A team of attorneys led by Michael F. Murphy, an Assistant Attorney General, represents the state of Michigan. News reports about this decision suggests some uncertain about whether the state would seek an appeal, but ultimately that seems likely, if only to preserve its right to appeal while regardless of what the Supreme Court does in the DeBoer case.