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Federal appeals court hears Michigan same-sex marriage appeal

Rick Pluta

The future of Michigan’s constitutional ban on same-sex marriage is in the hands of a federal appeals court.

Michigan was one of four states arguing to keep their bans in place today before the Sixth Circuit U.S. Court of Appeals in Cincinnati.

If the Potter Stewart Federal Courthouse had a theater marquee, it might have proclaimed a full-fledged “Legalpalooza,” with six cases from four states playing in one marathon session. About a half a dozen people even spent the night outside the courthouse in hopes of getting a seat to the show.

Frank Colasonti Jr. was among them. He traveled to Cincinnati from Oakland County to listen to arguments in the packed courtroom.

Colasonti and his partner were among the roughly 300 couples married during the brief window after a federal judge struck down Michigan’s same-sex marriage ban, and before the Sixth Circuit put a stop to it. Colasonti says he showed up in the afternoon on Tuesday to get in line, and then just never left.

“I wanted to be first, just to have a story to tell, and I wanted to make sure I had an opportunity to go into the courtroom, and visually see the arguments,” he said.

Colasonti’s wait paid off. He got to trade a concrete stoop for a courtroom’s paneled walls, red carpet, wooden benches, and three hours of legal arguments.

The will of voters, and changing attitudes toward gay marriage

Michigan, Ohio, Kentucky, and Tennessee all had cases before a three-judge panel. In each case, the state is challenging a lower court’s ruling that it must recognize same-sex marriages.

Michigan was up first.

“It is a fundamental premise of our democratic system that the people can be trusted to decide even divisive issues on decent and rational grounds,” Michigan Solicitor General Aaron Lindstrom said of Michigan’s same-sex marriage ban, which was adopted by voters ten years ago. He urged the judges to defer to voters.

“That’s what this case is about – who gets to decide what the definition of marriage is, not what that definition must be.”

Lindstrom said if public opinion on same-sex marriage is changing, then the political process is how that should be handled.

But that just takes too long, said attorney Carole Stanyar. She urged the appeals court to strike down the marriage bans because they hurt families.

“These bans humiliate children,” Stanyar told the court. “They devalue same-sex couple families in comparison with their opposite-sex counterparts. The bans bring shame to these children.”

Stanyar said that’s on top of the financial and legal complications that face same-sex couples in states with marriage bans.

“We know better now. There’s no reason to treat people this way.”

Families want recognition under the law

The couple that challenged Michigan’s same-sex marriage ban was also at the courthouse. April DeBoer and Jayne Rowse want the right to marry so they can adopt the special needs children they’re raising.

“We’re excited for today, hearing the arguments and the decision and being one step closer to being a legal family,” DeBoer said.

That decision from the Sixth Circuit will probably take weeks, if not months, says John Bursch, a former Michigan solicitor general, now in private practice. He’s argued numerous times before the Sixth Circuit and eight times before the United States Supreme Court.

Bursch says the judges probably talked about the case right after the arguments.

“And at that point,” Bursch said, “the judges have a conference, and they decide how they’re going to vote in the case, and if the judges can’t agree on the case, there might be multiple opinions. And that process usually takes anywhere from a couple of weeks to several months. In a big important case like this, it’s unlikely they’d release their written decision in less than a month.”

And that would set the Michigan case on a path to the United States Supreme Court, which last summer granted federal recognition of same-sex couples. Or the appeals court could wait to see what happens with some other same-sex marriage case. Bursch just filed a motion with the Supreme Court on behalf of Utah seeking to uphold that state’s same-sex marriage ban.

Rick Pluta is Senior Capitol Correspondent for the Michigan Public Radio Network. He has been covering Michigan’s Capitol, government, and politics since 1987.