A few minutes after 8 a.m. Saturday, Ingham County Clerk Barb Byrum did what no one in Michigan had ever done before: She officiated at the wedding of two women.
“It is always an honor to officiate a marriage ceremony,” said Byrum, who performed 30 same-sex ceremonies that day. “Saturday brought that honor to an entirely new level. The courthouse was full of love, laughter, tears of joy and happiness.”
Meanwhile, lines formed at county clerk offices throughout the state after U.S. District Judge Bernard Friedman on Friday struck down Michigan’s same-sex marriage ban.
But within minutes after Friedman’s announcement on Friday, Attorney General Bill Schuette filed a notice of appeal to the U.S. Court of Appeals for the 6th Circuit, leading to a temporary injunction.
“In 2004 the citizens of Michigan recognized that diversity in parenting is best for kids and families because moms and dads are not interchangeable,” said Schuette in a statement, referring to the Marriage Amendment to the Michigan Constitution approved by 2.7 million Michigan voters 10 years ago. “Michigan voters enshrined that decision in our state constitution, and their will should stand and be respected. I will continue to carry out my duty to protect and defend the Constitution.”
And on Tuesday evening, the 6th Circuit Court extended that stay indefinitely, creating a kind of legal limbo, and causing Washtenaw County Clerk/Register of Deeds Lawrence Kestenbaum to announce on Facebook that he was furious.
“The state was UNABLE to produce ANY credible evidence that the state had any rational basis for prohibiting same-sex marriage,” he wrote. “Yet two of the three judges decided the state’s pathetic case had ‘likelihood of success on the merits’! Moreover, they agreed that the state would suffer ‘irreparable harm’ from people marrying same-sex partners.
“Irreparable harm? I wish those judges had been at my office Saturday morning, to see the love and joy between partners who, in many cases, had been together for years or decades, reared children together, contributed to their communities. If that is ‘irreparable harm,’ let us have a lot more of it!”
In Ann Arbor, the first same-sex couple got in line for a marriage license at 5:30 a.m. Kestenbaum said it took support from the county board, the county administrator, and the other county officials to open the office on Saturday to accommodate the many couples he knew had been waiting a long time to legally wed in Michigan.
“At first, the question was, how could we open?” Kestenbaum recalled. “There were many practical issues. But the support from officials and community changed the question to: How could we not?”
Seventy-four licenses were issued, resulting in nearly as many weddings performed in the lower level meeting room by the ministers, judges and mayors present to officiate.
About 25 more couples were still waiting to apply for licenses when the vital records office had to close at 1 p.m.
The case of DeBoer et al v Snyder began in 2012, when Hazel Park residents DeBoer and Rowse challenged the state’s constitutional amendment that banned same-sex marriage.
The women hope to marry legally so they can have joint custody of their three adopted children. Michigan law had allowed single people to adopt but not an unmarried couple, so the women’s children were limited to one parent unless they could legally wed.
Cooley Law Professor Daniel Ray, who co-authored the brief filed on behalf of DeBoer and Rowse, said he was disappointed, though not surprised, that Schuette chose to pursue an appeal.
“This action, together with asking for an emergency stay, only prolongs the suffering of thousands of Michiganders and their families,” he said. “It likely will cause some of these good, decent people to suffer irreparable harm. Judge Friedman got it exactly right when he wrote that the governor and the attorney general forgot what the case is really about: people.”
Angie Martell, chair of The Washtenaw County Bar Association’s LGBTQ Rights Section, said that as soon as Friedman struck down the 2004 Michigan law banning same-sex marriages, she called and emailed many of her friends and told them to run—not walk—to the Clerk’s Office and get married.
On Saturday, 323 same sex couples were married in Washtenaw, Muskegon, Oakland, and Ingham counties.
“It was pure jubilation,” she said. “Couples paid their $20 fee, they popped champagne, they planned dinner with family and friends, and for the first time in a long time lesbian and gay Michiganders felt included and proud.”
People were literally running from the clerk’s office to their local minister, pastor, and justice of the peace before the window closed, she said. While 323 is less than the 1,300 gays and lesbians married in Utah before the U.S. Supreme Court granted a stay of execution of the decision there, the hundreds of same sex couples living in Michigan who are legally married because they were married in states where gay marriage is legal brings the numbers close to Utah, said Martell, who is in a same-sex marriage herself.
“While most of us feel that the temporary stay is two steps forward and one step back, we are also cognizant that Judge Friedman’s decision finding Michigan Marriage Amendment unconstitutional will stand and it’s only a matter of time,” she said. “As Americans we know that the guarantees of equal protection always prevails while bigotry never prevails.”
She said the stay does irreparable harm to not only the named plaintiffs in this case but also to the 323 couples recently married — “and all of us who are also legally married prior to the DeBoer decision.”
“The likelihood of success of the merits of the state’s case is nil.”
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