Paul Egan

Detroit Free Press

LANSING, Mich. — More than 100 same-sex couples who got married in Michigan on Saturday stand the risk of having their marriages fall into a form of legal limbo if the state refuses to recognize them while appeals are pending, according to an expert on federal law and the courts.

Carl Tobias, a professor at the University of Richmond School of Law in Richmond, Va., said the status of the same-sex marriages in Michigan is not entirely clear while an appeal of a federal judge's ruling declaring Michigan's voter-approved ban on same-sex marriage unconstitutional is pending before the U.S. 6th Circuit Court of Appeals.

Michigan Attorney General Bill Schuette wasted no time late Friday afternoon filing an emergency motion requesting a stay of U.S. District Judge Bernard Friedman's ruling that Michigan's ban on same-sex marriage is unconstitutional.

Schuette said that the ruling goes against Michigan's constitution, and since Friedman did not include a stay of the ruling until an appeal could be heard, it went against precedent set in other cases on same-sex marriage around the country.

Late Saturday, the appeals court imposed a stay in the case until Wednesday.

A similar situation arose in Utah, where a federal judge ruled in favor of gay marriage in December and denied a stay of his ruling. But the stay was ultimately granted by the U.S. Supreme Court, pending appeals.

More than a thousand same-sex couples married in Utah in the interim are "really in limbo" because their marriages are recognized at the federal level, but not at the state level, Tobias said. That means those couples are still having problems exercising rights on issues such as spousal benefits and adoption, he said.

Tobias said it's likely Michigan will refuse to recognize Saturday's marriages pending their appeals of U.S. District Judge Bernard Friedman's ruling, meaning the Michigan marriages could also be in limbo.

Still, "I think they can make a very good argument" that the marriage licenses they were issued are valid, Tobias said.

California began allowing same-sex marriages in 2008 after the state Supreme Court struck down the state's ban as unconstitutional. A voter-passed ban in November 2008 put a temporary halt to gay marriages, but marriages performed during the interim were still recognized as valid by the state. Gay marriages resumed in California in 2013, based on a narrow U.S. Supreme Court ruling.

It's not clear what cases will ultimately go the U.S. Supreme Court to decide the question, though the Michigan case could be one of them, Tobias said.

Cases out of Virginia, Oklahoma and Utah are likely first in line to get to the Supreme Court, he said.