High court delays action on Michigan gay marriage case

It will be at least until Monday before it is known if the U.S. Supreme Court will take up a Hazel Park couple’s federal lawsuit seeking to overturn Michigan's gay marriage ban.

Dana Nessel, co-counsel for two women who challenged Michigan’s voter-approved constitutional amendment banning same-sex marriage, said Friday the court will issue its orders Monday.

Nessel said she remains hopeful that the nation’s highest court will decide to take on the case involving April DeBoer and Jayne Rowse for arguments. The couple originally filed a lawsuit seeking to adopt each other’s special-needs children and, prodded by a Detroit federal judge, expanded the suit to challenge Michigan’s ban on same-sex marriage.

The review by the U.S. Supreme Court of the DeBoer case was being done along with other same-sex marriage cases from Kentucky, Ohio and Tennessee, states represented by the U.S. 6th Circuit Court of Appeals, which upheld bans in Michigan and the other states.

A same-sex marriage case out of Louisiana was also being considered.

Michigan Attorney General Bill Schuette said Friday he also hopes that the nation’s high court will take up the DeBoer case.

“I am hopeful the court will eventually take up this issue and optimistic they will choose to do so at their next conference,” Schuette said in a Friday statement. “The sooner the United States Supreme Court makes a decision on this issue, the better it will be for Michigan and America.”

In the state's 32-page filing in November, attorneys said the legal argument on marriage comes down to Michigan voters.

“This case comes down to two words: Who decides?,” according to the brief. “The history of our democracy demonstrates the wisdom of allowing the people to decide important issues at the ballot box, rather than ceding those decisions to unelected judges.”

On March 21, U.S. District Judge Bernard Friedman struck down the state’s gay marriage ban, arguing it denied DeBoer and Rowse equal protection under the law.

In a 2-1 decision in November, a panel of the 6th Circuit reversed the decision and upheld the right of states to decide controversial social issues.

“When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers,” wrote 6th Circuit Judge Jeffrey Sutton.

“Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.”

The court has three options: It could take up the case, reject it or put it over to next year. If the court accepts it for review, arguments would be held in April and a decision delivered likely by the end of June.

Observers such as Fordham University law school associate professor Elizabeth Cooper said Friday the court could likely take the Michigan case because of the “split” among circuit courts across the country about whether same-sex marriage bans by states are constitutional. The 6th Circuit decision upholding the state bans conflicts with other circuit decisions ruling such state laws unconstitutional.

“Now that two-thirds of the states have gay marriage it would be very hard to see the court turn around and take away that right,” said Cooper. “There’s still a chance they could let the rest of the cases percolate and see what happens.”

Same-sex marriage is legal in 36 states.

bwilliams@detroitnews.com

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