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Michigan supports prompt review of same-sex marriage

Moving rapidly to help persuade the Supreme Court to take up the same-sex marriage issue promptly, Michigan officials filed their brief Monday night in a key case from the U.S. Court of Appeals for the Sixth Circuit — the only federal appeals court in the recent round of rulings to uphold a state’s ban on such unions.

The state’s brief was sent to the Court three weeks earlier than it would have been due.  Although in favor of early review by the Justices, state officials continued to defend their ban, arguing that the Sixth Circuit got it right in declaring that the question should be left to the will of a state’s voters.

The Michigan case, DeBoer v. Snyder, involves one of the five new petitions now awaiting the Court’s attention, but it is the only case in the group in which the issue was decided after a full trial based on evidence beyond legal argument.

In defending the ban, Michigan officials were sharply critical of the federal courts that have nullified state bans in recent years, contending that those courts had interrupted an “ongoing exercise in self-governance” in which Americans across the nation had been debating the same-sex marriage issue and carrying out their wishes through state laws and constitutional amendments.

The recent flurry of court decisions, the new brief noted, resulted in the nullification of “democratically enacted laws in nineteen states” prohibiting same-sex marriage.  The democratic process, the filing added, had resulted in same-sex marriage gaining approval of the voters in twelve states and Washington, D.C., over the past five years.

The result of the courts’ actions against bans, the document went on, has been to create “a new constitutional right: a right to same-sex marriage.”  By contrast, it said, the Sixth Circuit “recognized that democratic processes and our constitutional structure may be the most reliable, liberty-assuring guarantees of our system of government.”  The Sixth Circuit decision upheld the bans in Michigan and three other states — Kentucky, Ohio, and Tennessee.

Now pending at the Court are petitions challenging the Sixth Circuit’s result for each of those states, along with a petition that asked the Supreme Court to grant review — without waiting for a federal appeals court — in a same-sex marriage case from Louisiana.

The Court has not yet indicated when the Justices will take their first look at the new petitions.  If any of them are to be reviewed during the current Term, they will have to be granted by no later than about mid-January, which is why Michigan officials filed their brief well ahead of its December 18 due date.

It is unknown at this point whether the Court’s staff will wait for briefs to be filed in response to the other petitions, before sending them to the Justices for initial consideration.  If they are treated as a single, related group, and if officials in other states do not move as rapidly as Michigan did, that could slow down the process somewhat.

Recommended Citation: Lyle Denniston, Michigan supports prompt review of same-sex marriage, SCOTUSblog (Nov. 25, 2014, 11:00 AM),