News
Will the 6th Circuit allow Michigan marriages to continue?
Weddings halted until at least Wednesday, but no decision on stay pending appeal
The Sixth Circuit will consider whether to stay marriages in Michigan this week. (Image courtesy Wikimedia Commons)
Marriage equality advocates are watching the U.S. Sixth Circuit Court of Appeals this week as it decides whether to stay same-sex weddings in Michigan or allow them to continue as the court considers marriage equality litigation.
Experts say the Sixth Circuit — and the Supreme Court if the stay request is appealed — have room to allow the Michigan same-sex weddings to continue because the Supreme Court’s stay on weddings following a similar ruling in Utah isn’t controlling and many district courts have now ruled in favor of marriage equality.
Shannon Minter, legal director for the National Center for Lesbian Rights, was among those saying he doesn’t believe a stay is warranted in the case, known as DeBoer v. Snyder.
“The Supreme Court did not explain the reasons for its stay in the Utah case, so it provides little guidance and certainly should not be construed as requiring stays in other cases,” Minter said. “Utah was the first federal court in the country to strike down a state marriage ban post-Windsor, but many others have since followed suit, so the legal landscape is already quite different than when the Supreme Court issued a stay in that case.”
U.S. District Judge Bernard Friedman, a Reagan appointee, issued the ruling striking down Michigan’s 2004 constitutional ban on same-sex marriages on Friday, but unlike similar rulings against laws in Texas, Virginia and Oklahoma, Friedman didn’t include a stay in his ruling.
Vickie Henry, a senior staff attorney at Gay & Lesbian Advocates & Defenders who helped plaintiffs for the Michigan trial, said the lack of a stay from the judge came as no surprise given the concern he stated in his ruling for children raised by same-sex couples.
“At this point, all the recent decisions have all come out the same way,” Henry said. “So at some point I think you recognize there’s a high human cost, a high people cost, in the denial of these rights. I can’t speculate what he was thinking, but that seems like a great reason to not enter a stay.”
But Attorney General Bill Schuette filed a stay request before the Sixth Circuit to halt the same-sex marriages in Michigan as he and Gov. Rick Snyder filed notice they would file an appeal to the court.
After allowing plaintiffs the opportunity to respond to the stay request by Tuesday, the Sixth Circuit issued a temporary stay on the same-sex weddings until at least Wednesday — but only after an estimated 315 gay couples received marriage licenses on Saturday.
A similar situation has happened before just recently. After U.S. District Judge Robert Shelby struck down Utah’s marriage ban in the case of Kitchen v. Herbert, Gov. Gary Herbert sought a stay request from the U.S. Tenth Circuit Court of Appeals. The appeals court denied the stay, but the Supreme Court later instituted it after U.S. Associate Justice Sonia Sotomayor referred the matter to the entire bench.
Henry said she thinks the same outcome won’t necessarily befall Michigan despite the stay from the Supreme Court in the Utah case.
“It’s not directly controlling,” Henry said. “In other words, the Sixth Circuit’s not bound by it, but it’s certainly suggestive to the court of what at least one member of the Supreme Court would want them to do.”
Equality Michigan is circulating a petition calling on Snyder and Schuette to drop their appeal of the ruling. As of Monday afternoon, the petition had more than 10,000 signatures.
“We must end the second-class treatment of LGBT families in Michigan,” the petition states. “Rather than siding with the people of Michigan, Schuette and Snyder are wasting taxpayer dollars defending a ban on marriage equality that harms Michigan families — and that the people of Michigan no longer even want.”
But now that the Michigan case has been appealed, all four states in the Sixth Circuit — Michigan, Ohio, Tennessee and Kentucky — have marriage equality cases before the appeals court.
The Sixth Circuit has ruled on an LGBT-relevant case before, but the outcome and the precedent it set wasn’t favorable to LGBT people.
In the case of Equality Federation v. Cincinnati, the court in 1996 upheld an anti-gay ordinance in Cincinnati forbidding the city from enforcing civil rights ordinances based on sexual orientation. The judges issued this decision despite the Supreme Court ruling in 1992 in Romer v. Evans, which found that a similar measure, Colorado’s Amendment 2, was unconstitutional.
But the Cincinnati ordinance has since been repealed in 2004, and that ruling was delivered years ago before the Supreme Court issued precedent protecting gay people in Lawrence and Windsor.
If the Sixth Circuit denies a stay, state officials could appeal the stay request to the Supreme Court justice responsible for stays in the Sixth Circuit: U.S. Associate Justice Elena Kagan. In that event, Kagan could refer the request to the entire court. If she declines a stay on her own, the state could ask any justice on the court for a stay, including anti-gay U.S. Associate Justice Antonin Scalia.
Jon Davidson, legal director for Lambda Legal, expressed uncertainty about whether the Supreme Court would take similar action as it did with the Utah same-sex marriages.
“The Supreme Court did not explain why they issued the stay in Kitchen previously, however, so there is no way of knowing for sure what motivated them to do that or whether a majority of them would do the same thing in the face of the tidal wave of decisions in favor of marriage equality that we are seeing in the lower courts,” Davidson said.
Not all legal experts foresee a possibility in which neither the Sixth Circuit nor the Supreme Court would refuse to grant a stay on same-sex weddings.
Nan Hunter, a lesbian law professor at Georgetown University, predicted the Supreme Court would continue to issue stays on same-sex marriages throughout the country until it delivers it final determination on same-sex marriage.
“My view is that the Supreme Court will continue to grant stays until they resolve a case on the merits,” Hunter said. “Earliest that is likely to happen is June 2015.”
In the event a stay is granted by either the Sixth Circuit or the Supreme Court, another question would emerge similar to the situation in Utah: Would the federal government and state of Michigan recognize the same-sex marriages already conducted in the state?
In Utah, the decision was split. Herbert announced that his state wouldn’t recognize the estimated 1,300 same-sex marriages conducted in Utah pending the final outcome of the litigation. But U.S. Attorney General Eric Holder announced the Obama administration would consider those marriages valid for the purposes of federal benefits. Several state attorneys general, including Maryland’s Doug Gansler, announced their states would also recognize the marriages.
According to the Associated Press, Michigan Gov. Rick Snyder is holding off on the determination on whether his state will recognize the unions. His spokesperson is quoted as saying the governor will wait for a stay decision to be reached before deciding whether Michigan will recognize the marriages.
Ingham County Clerk Barb Byrum and East Lansing Mayor Nathan Triplett, who performed same-sex marriages in Michigan over the weekend, sent a letter Monday to Holder insisting the federal government should recognize those unions.
“Many of the couples that were married on March 22 waited decades for that opportunity,” Byrum and Triplett write. “Their marriages complied with Judge Friedman’s order and all relevant provisions of Michigan law and should be recognized as such by state and federal authorities without delay.”
The Justice Department didn’t yet have a definitive answer in response to the Washington Blade’s request to comment on whether the federal government will recognize same-sex marriages performed in Michigan.
“We are closely monitoring the situation,” said Allison Price, a Justice Department spokesperson.
Congress
Bill seeks to block global gag rule expansion
Policy now bans US foreign aid to groups promoting ‘gender ideology’
Lawmakers on Wednesday introduced a bill that would block the expansion of the global gag rule.
President Ronald Reagan in 1985 implemented the global gag rule, also known as the “Mexico City” policy, which bans U.S. foreign aid for groups that support abortion and/or offer abortion-related services.
Trump reinstated the rule during his first administration. The Biden-Harris administration shortly after it took office in 2021 rescinded it.
The Trump-Vance administration earlier this year expanded the global gag rule to ban U.S. foreign aid for groups that promote “gender ideology.” The expansion took effect on Feb. 26.
U.S. Sens. Jeanne Shaheen (D-N.H.) and Jacky Rosen (D-Nev.) introduced the Protecting Human Rights and Public Health in Foreign Assistance Act in the U.S. Senate. U.S. Reps. Grace Meng (D-N.Y.), Lois Frankel (D-Fla.), Diana DeGette (D-Colo.), Pramila Jayapal (D-Wash.), Sara Jacobs (D-Calif.), and Gregory Meeks (D-N.Y.) introduced it in the U.S. House of Representatives.
“Using taxpayer money to export the Trump administration’s anti-trans, anti-science, and anti-abortion ideological agenda isn’t just immoral — it’s antithetical to efficient, effective, and rights-based foreign assistance,” said Council for Global Equality Senior Policy Fellow Beirne Roose-Snyder on Wednesday in a press release.
Meng in a Congressional Equality Caucus press release added the Trump-Vance administration’s “crusade against healthcare and global aid is putting millions of lives at risk worldwide.”
“No one will flourish under the new expanded global gag rule,” said the New York Democrat. “These policies weaponize foreign aid and will result in greater harm, particularly for women and girls, marginalized communities, and LGBTQI+ individuals.”
“They should never have been implemented at all, let alone without even a basic public comment process,” she added. “This legislation will reverse these dangerous policies.”
District of Columbia
Both sides propose revised orders in Capital Pride stalking case
Defendant Darren Pasha agreed to accept less restrictive directive
An evidentiary hearing in D.C. Superior Court on April 29 in which the Capital Pride Alliance presented three of four planned witnesses to testify in support of its civil complaint that D.C. gay activist Darren Pasha engaged in a year-long effort to harass, intimidate, and stalk its staff, board members, and volunteers ended abruptly at the direction of the judge.
Judge Robert D. Okun announced from the bench that the hearing, which was intended provide Capital Pride an opportunity to present evidence in support of its request to reinstate an anti-stalking order against Pasha that the judge temporarily rescinded on April 17, was no longer needed because Pasha stated at the hearing that he is willing to accept a revised, less restrictive temporary restraining order.
Pasha made that statement after two Capital Pride witnesses — June Crenshaw and Vincenzo Volpe — each testified in support of the stalking allegations against Pasha for over an hour under questioning from Capital Pride attorney Nick Harrison and under cross-examination from Pasha, who is representing himself without an attorney.
After Capital Pride’s third witness, Tifany Royster, testified for just a few minutes, and after the judge called a recess for lunch and to attend to an unrelated case, Pasha announced that after obtaining legal advice he determined that he was unsuited to continue cross-examining the witnesses. He said he would be willing to accept a significantly less restrictive temporary restraining order.
Okun then ruled that the evidentiary hearing was no longer needed and directed Capital Pride and Pasha to submit to him their version of a revised stay away order. He said he would use their proposed revisions to help him develop his own order, which he would issue after deliberating over the matter.
He also scheduled a mandatory remote mediation session for July 23, in which efforts would be made to resolve the case without going to trial. He then adjourned the hearing at 3:50 p.m.
The online Superior Court docket for the case stated after the hearing ended that the judge would issue “a new modified Temporary Protective Order,” but it did not say when it would be issued.
Shortly before the April 29 hearing began at 11 a.m., Harrison filed a “Draft Temporary Anti-Stalking Order” that included a list of 34 “Protected Persons” that Harrison said during the hearing were affiliated with Capital Pride Alliance as staff and board members, volunteers, and others associated with the group.
The proposed order stated, “The defendant shall not contact, attempt to contact, harass, threaten, or otherwise communicate with any protected person, directly or indirectly, including through third parties, social media, electronic communications, or any other means.”
The proposal represented a significant change from Capital Pride’s initial civil complaint against Pasha filed in February that Pasha claimed called for him to stay away at least 200 yards from all Capital pride staff, board members, and volunteers without naming them. Okun granted that stay away request in February but reduced the stay away distance to 100 feet.
Capital Pride attorney Harrison disputes Pasha’s interpretation of the order, saying the 100-foot stay-away was for events, not for individual Capital Pride staff, volunteers, or board members. He said the order prohibited Pasha from engaging in any way with the Capital Pride staffers, volunteers or board members.
But the proposed order Capital Pride at first submitted at the April 29 hearing also called for Pasha to stay away from and to not attend as many as 25 Capital Pride events scheduled to take place this year from April 30 through June 21 and for him to say away from the Capital Pride office located at 1827 Wiltberger St., N.W., which is the building in which it shares with the DC LGBTQ Community Center.
At the April 29 hearing, at Pasha’s request, Okun called on Capital Pride to consider allowing Pasha to attend at least the two largest events — the Capital Pride Parade and Festival — which draw over 500,000 participants.
Harrison said in a follow-up message to the judge following the hearing that Capital Pride would allow Pasha to attend those two events and one other as long as he stays away from “ticketed and controlled access areas.”
At an April 17 status hearing Okun rescinded the earlier stay away order at Pasha’s request, among other things, on grounds that it was too vague and didn’t provide Pasha with sufficient specific information on who to stay away from. It was at that hearing that Okun scheduled the April 29 evidentiary hearing, saying it would give Capital Pride a chance to provide sufficient evidence to justify an anti-stalking order and Pasha an opportunity to challenge the evidence.
In his own response to the initial civil complaint filed in February and in subsequent court filings, Pasha has strongly denied he engaged in stalking and has alleged that the complaint was a form of retaliation against him over a dispute he has had with Capital Pride and its former board president, Ashley Smith.
Like its initial complaint filed in February, Capital Pride filed a multipage document at the start of the April 29 hearing with written testimony from staff members and volunteers who allege that Pasha did engage in stalking, harassment, and intimidating behavior toward them and others.
Like Capital Pride, Pasha following the April 29 hearing, filed his own proposed version of the stay away order with significantly less restrictions than the Capital Pride proposal. Among other things, it calls for him to restrict his contact with Capital Pride CEO Ryan Bos and Crenshaw but says it “does not by its terms restrict the defendant’s communications with any other person, entity, governmental body, or media outlet.”
“Darren Pasha sent multiple messages to us and to the court after the proceedings asking for further modifications — which we are not accepting or responding to,” Harrison told the Blade in response to a request for further comment on Judge’s request for each side to submit proposed revisions of the stay away order.
“We appreciate the court’s time and careful attention to the evidence presented today,” Harrison told the Washington Blade in a written statement after the hearing. “This process was about bringing forward the experiences of individuals who reported a pattern of conduct that caused fear, serious alarm, and emotional distress,” he said.
“Capital Pride Alliance remains committed to ensuring that our events and community spaces are safe, welcoming, and free from harassment and we will continue to take appropriate steps to support and protect our community,” his statement says.
“I am happy with what we have accomplished so far,” Pasha told the Blade after the hearing. “I’m just waiting to see what will happen next. But I want to reiterate this goes back to when someone treats you wrong you speak up,” he said. “Even if I lose this case, I am glad that I spoke up and raised concerns.”
He added, “I will just be confident that in the next couple of months the truth will come out. But for now, I am happy with the progress that we have made regarding this.”
This story will be updated when the judge issues his revised stay away order.
European Union
European Parliament backs EU-wide conversion therapy ban
More than 1.2 million people backed campaign
The European Parliament on Wednesday voted in favor of banning so-called conversion therapy across the European Union.
ACT (Against Conversion Therapy) LGBT in 2024 launched a campaign in support of the ban through the EU’s European Citizens Initiative framework. More than 1.2 million people ultimately signed it.
The proposed ban had the support of 405 MEPs. The European Commission is expected to formally respond to it by May 18.
Seven EU countries — Belgium, Cyprus, France, Malta, Norway, Portugal, and Spain — have banned conversion therapy outright.
Greece in 2022 banned the practice for minors. German lawmakers in 2020 passed a law that prohibits conversion therapy for minors and for adults who have not consented to undergoing the widely discredited practice.
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