Prospective brides and grooms in same-sex relationships could not be blamed for feeling jilted this week – not by their partners, but by the Eastern U.S. District Court in Detroit.
They expected this would be their day - that Judge Bernard Friedman would strike down Michigan’s ban on same-sex marriage, and they would be among the first gay and lesbian couples in Michigan to tie the knot.
Instead, disappointment. Anger. Tears, in some cases. Big expectations dashed because Judge Friedman did not uphold or strike down the amendment, which was approved by Michigan voters in 2004 by a pretty commanding majority.
Friedman rejected motions for summary judgment (basically requests for an immediate decision) and ordered a trial to begin in February with studies and expert testimony. Friedman wants both a legal and a factual record. In his opinion and order, Friedman said courts have to respect legal precedents, but judges don’t have to respect the factual records of other courts. He wants his case to have its own record of facts and expert testimony, as well as a record of the legal arguments.
But why those big expectations? Especially when the judge has said he didn’t expect to rule the same day as the arguments. (We should point out, the judge did issue a ruling. It just wasn’t on the substantive question of whether the same-sex marriage ban is constitutional.)
There were actually several things that converged to create the expectation that Friedman would rule on the Michigan Marriage Amendment.
First of all, we don’t know where it started but, somewhere, someone got what they thought was reliable word on what Judge Friedman was going to do. That word reached the ears of advocates on the issue, some reporters, and it became almost an accepted fact that it was going to happen:
Judge Friedman would rule, probably to strike down the marriage ban, and we’d all be on our way to the U.S. Sixth Circuit Court of Appeals.
At that point, public expectations were fueled by breathless news reports and provocative headlines, like: “Court Ruling Could Lift Ban On Same-Sex Marriage In State Of Michigan,” “Federal judge expected to rule on Michigan's gay marriage, adoption ban today,” and “Michigan Same Sex Marriage Ruling Expected Wednesday."
Note the heavy use of the word “expected.” It’s a wiggle word used by journalists (including us) to say, “This is what I expect to happen” based on interviews and conversations with sources. But it’s an acknowledgement that no matter what you know or think you know, things can change.
But expectations weren’t only by hyperventilated media coverage. Some county clerks got into the act, wanting to be part of history, part of the first wave of same-sex weddings, announcing they would start issuing licenses as soon as Friedman ruled. But they did so without adding a little reality check that Friedman might not rule and, even if he did, that ruling would almost certainly be stayed while the case is appealed to the U.S. Sixth Circuit.
There was a whole side drama playing out in county buildings across Michigan, literally as the arguments were taking place in the courtroom. Attorney General Bill Schuette, whose legal team is trying to uphold the same-sex marriage ban, sent messages to clerks that they may not immediately issue marriage licenses to gay and lesbian couples, no matter what the judge ruled. Some clerks bridled, vowed defiance, but the whole imbroglio became a moot issue once Friedman declined to issue a summary judgment order.
And let’s not ignore Judge Friedman's major role in this expectations drama. The judge was the one who pushed Jayne Rowse and April DeBoer to expand their case to challenge the marriage amendment. They first went to court simply trying to get the right to jointly adopt the children they’re already raising together.
Then Friedman moved the hearing on that out of Detroit’s federal courthouse to the (larger capacity) auditorium at the Wayne State University law school. Everyone thought, he must be planning something big. Instead, he just wanted to bring an interesting case to campus for the law students to witness. But he did promise at that hearing last spring that it would be the final hearing before he issued a decision.
Friedman said his opinion would come quickly, once the U.S. Supreme Court ruled on a couple of gay marriage cases. Instead, the Supreme Court made its rulings in June in the DOMA and Windsor cases, and Judge Friedman scheduled another round of arguments, the ones that took place this week, and wound up with an order for a trial next year.