Attorney & Mediator
Attorney & Mediator

Same Sex Marriage in Michigan – The current status

In 2004, Michigan Proposal 04-2 was passed by 59% of the voters. This Amendment to the Michigan Constitution makes it unconstitutional for the state of Michigan to recognize or perform same-sex marriages or civil unions.

Under other circumstances, our courts in Michigan would recognize legal rights granted in other states to that state’s citizens. Under this Constitutional Amendment, Michigan does not recognize legally performed marriages for same sex couples in states where the same is permitted. Therefore, a same sex couple legally married in New York, will not find that marriage legally recognized in the state of Michigan.

What does this affect?

Taxation. The federal government has recognized same sex marriage as legitimate for federal income tax purposes. Therefore, these couples may file their taxes on a joint tax return. However, if they happen to live in Michigan, they must have their taxes recomputed as each filing single and carry that information over to each of their Michigan Tax Returns.

Adoption. The Michigan Adoption Law requires that a couple be a man and a woman in order to permit a legal adoption by that couple. Therefore, if a same sex couple desires to adopt a child, only one partner may apply to be the legal adoptive parent of the child. Additionally, if one woman partner is the birth mother of a child, her female partner is not legally permitted to adopt the child.

This was the essence of the recent case in Michigan DeBoer v. Snyder, in which Judge Bernard Friedman held the Michigan ban on same sex marriage to be unconstitutional. The following day, approximately 300 couples obtained marriage licenses and were legally married prior to the Sixth Circuit Court of Appeals placing a stay on Judge Friedman’s ruling. These couple are now in limbo. The state of Michigan is refusing to recognize these marriages.

Status. This case is now on appeal to the Sixth Circuit Court of Appeals. This will be a very slow process.

Appeals are not a re-trial of the issues that were raised below. There will be no testimony taken again. The Appeals could will read the legal briefs submitted, read the applicable law, read the transcripts, and hear oral argument. The Court will then determine whether or not the ruling of Judge Friedman, holding the Michigan law unconstitutional, was correct or incorrect.

The initial submission of briefs by the Michigan Attorney General (the appellant or appealing party) and the women who originally brought the lawsuit (the appellees or defending parties) are not due to be filed until June. Thereafter, there will also be opportunity for Responsive Briefs to issues raised by the other parties.

Then, the case will be scheduled for oral argument. This matter will not be scheduled until late September or late November. Thereafter, the Court will then take significant time to make a decision which will be issued by a written decision or Opinion of the Court sometime in 2015.

That will not be the end of the case. The losing party will then file an appeal with the U.S. Supreme Court. Unlike the Court of Appeals, which must hear the cases which are appealed to it, the Supreme Court may decide to hear the case or not hear the case. This is called a writ of certiorari. If the Supreme Court decides to hear the case, this appellate process will start all over again with submission of briefs, oral argument and Opinion of the Court.

Both sides of this issue are hopeful that the U.S. Supreme Court will hear this issue because at the present time, there are 64 cases pending in 30 states challenging the constitutionality of gay marriage bans.

For now, for Michigan couples, it is a waiting game.