GRAND RAPIDS, Mich. (March, 4, 2014) — Currently, a Kent County marriage license clearly reads that the two parties getting married are a man and a woman.
But those lines may be blurring and change could be on the way for those forms.
As the trial continues in Detroit on whether Michigan’s gay marriage ban is constitutional, West Michigan court clerks are watching closely.
If history has any bearing on the case, the ban may fall, says Devin Schindler, professor of constitutional law at Cooley Law School. “The trend certainly seems to be against the state of Michigan at this point.”
“We’ve had, I believe, 18 or 19 different states, either through judicial determinations or by way of legislation, that have enacted marriage equality statutes or have been forced to recognize marriage equality as a result of court opinions,” said Schindler.
However, even if the law is found unconstitutional by the district court judge in Detroit, it doesn’t necessarily mean that couples can run to the courthouse right away.
“The question really becomes if the government loses this particular case whether the court will issue the stay,” said Schindler. He says it’s often typical for a judge in high profile cases such as this to mandate that things remain status quo pending a higher court decision.
If a stay is not issued, county court clerks, who issue the licenses, will be in a tough spot.
For those clerks who may have been considering issuing the licenses anyway, as the Oakland County clerk has indicated that’s what she would like to do, there is pressure from the Michigan Attorney General Bill Schuette.
In October, 2013, Schuette issued a warning letter to county clerks across the state. “You are forbidden by Michigan law from issuing a marriage license to same-sex couples during the pendency of the appeal,” the letter said. It went on to say that the judge’s ruling “is not subject to enforcement while the decision is stayed.”
Kent County Clerk Mary Hollinrake says she is holding off on stating an opinion for the time being until the judge issues his opinion. Montcalm County Clerk Kristen Millard said her office “will follow the law, whatever that law is.” Calhoun County Clerk Anne Norlander issued a statement after getting Schuette’s letter that said that “the Michigan Attorney General’s office has indicated that even if the constitutional provision is overturned, that office will appeal any adverse decision and that it is the opinion of his office that County Clerks in Michigan cannot and should not issue same-sex marriage licenses. Barry County Clerk Pamela Jarvis said she would “follow the law, whatever that may be, along with the majority of the county clerks in the state and look to the county’s legal counsel for advice as needed. Until the court issues a ruling, we don’t know what that law will be.”
There is the chance that a judge won’t issue a stay. That happened in Utah where people then jammed clerk’s offices, immediately lining up to get their licenses.
“If the court doesn’t issue the stay, it’s going to be very interesting to see exactly how the attorney general responds, because if you read the letter, the attorney general is clearly envisioning that a stay will be granted,” said Schindler.
The trial was in its sixth day Tuesday. Both sides still have yet to give closing arguments.