Americans will have to wait for final decision on gay marriage

Mar 26, 2014

There are a lot of bewildered and dejected people in Michigan today.

Most of all, perhaps, the 300 or so same-sex couples who got married last Saturday, after a federal judge overturned Michigan’s amendment outlawing such marriages. U.S. District Judge Bernard Friedman ruled, as expected, that our state’s constitutional prohibition of such marriages was wrong.

But unlike federal judges in other states where this happened, he did not put his ruling on hold till the appellate courts could rule, so there was a mad scramble for licenses and ceremonies in those counties where the clerks were sympathetic.

Within a day, however, the U.S. Sixth Circuit Court of Appeals issued a temporary stay, and yesterday they made that stay permanent, at least until they rule on the case.

That will take months, at a minimum. The court asked both sides to have their briefs in by June, after which they will invite oral arguments.

That may seem like a long time, but by federal appellate court standards, that is almost lightning speed. However, if there is anything certain about all this, it is that whatever this court does will not be the final word.

This issue is going to be decided by the United States Supreme Court.

This issue is going to be decided by the United States Supreme Court. In the meantime, those folks who hastily married are left hanging. One of them, an East Lansing woman, was quoted as saying, “It was such a high on Saturday, but now it doesn’t feel so good. Are we married or aren’t we?”

I sympathize with everyone else in her predicament. But far more important than my own view is that every survey shows that society has been dramatically moving in this direction. Though the U.S. Supreme Court does not have to bend with political pressure, it does, in a sense, “follow the election returns,” as the nineteenth century humorist Finley Peter Dunne’s Mr. Dooley said.

Most legal scholars think, based on earlier decisions, that the only question is whether the high court will say same-sex marriage is a constitutional right, or leave that up to the individual states .

But though I sympathize with the folks left in legal limbo, my sympathy is tempered by the knowledge that they should have seen this coming. It was clear from the moment the opinion was released that a stay would quickly follow. That’s what happened in cases in the eight other states where judges made similar rulings. 

If things play out in the way they normally do, eventually, these cases will be appealed to the U.S. Supreme Court, and the justices will agree to decide the issue, perhaps bundling several or all of these cases together. Then, they will decide.

That may not happen, however, till June of next year or perhaps 2016. Unless, that is, the court were to grant an expedited appeal. That would seem highly unlikely. The justices refused, after all, to do that with the Affordable Care Act.

Normally, they prefer – as they should – to avoid anything that looks like a rush to judgment. Americans aren’t a patient people, and we are probably less so than ever these days.

But my guess is that in this case, we may just have to be.