Schuette Moves To Expedite Same-Sex Appeal

Posted at 6:27 PM, Apr 04, 2014

LANSING, Mich. — Michigan Attorney General Bill Schuette today announced he has filed a petition with the U.S. Court of Appeals for the 6th Circuit, requesting they bypass an initial panel hearing and instead hold a single “en banc” hearing before the full panel of 15 judges.

“My responsibility as Attorney General to defend the Michigan Constitution and the voters’ decision to define marriage is important, and the sooner we reach a final resolution from the courts, the better,” said Schuette. “Advancing our case to a hearing before the entire panel of Sixth Circuit judges will move us forward more quickly, and minimize delays in ultimately reaching the U.S. Supreme Court.  This move also offers the added benefit of conserving taxpayer resources by shortening the timeline of the litigation.”

Schuette has filed a formal petition for initial hearing en banc with the U.S. Court of Appeals for the 6th Circuit.  A hearing en banc involves presenting the case to the full court of the 6th Circuit for review, a step traditionally reserved for significant cases.  This process is permitted when new decisions conflict with previous rulings, and for questions of “exceptional importance” (Federal Rule of Appellate Procedure 35).

“This option is not unprecedented.” Schuette continued. “The Sixth Circuit previously granted a similar request for the Grutter case involving the University of Michigan Law School admissions policies.”

The U.S. Court of Appeals for the 6th Circuit granted a request to advance to an en banc hearing prior to a panel hearing in the case Grutter v. Bollinger, which involved University of Michigan Law School admissions policies.

The 6th Circuit also granted a request for en banc consideration in Schuette v. BAMN, when two panels issued conflicting rulings.  A similar conflict situation is possible again with the four currently pending marriage appeals.  Cases challenging state marriage laws are currently scheduled for near simultaneous consideration in three other states within the 6th Circuit: Ohio (Obergefell v. Wymsylo), Kentucky (Love v. Beshear), and Tennessee (Tanco v. Haslam).  With four states appealing on similar issues, the potential for panels to disagree is likely to result in future en banc hearing requests.  Schuette’s request accelerates this process.

On March 21, 2014, Schuette filed an appeal of a federal judge’s ruling striking down Article 1, Section 25 of the Michigan Constitution, also known as the Marriage Amendment.  The amendment defining marriage was approved by 2.7 million Michigan voters in 2004.  U.S. District Court Judge Bernard A. Friedman ruled against the Michigan Constitution in DeBoer v. Snyder on March 21, 2014 following a two week trial to evaluate voters’ decision to define marriage as between one man and one woman.

In contrast with other federal judges handling similar cases across the country, Judge Friedman did not stay his ruling pending the outcome of appeal.  Schuette filed an emergency request for stay and appeal on March 21, 2014 with the U.S. Court of Appeals for the 6th Circuit.  On March 22, 2014, the 6th Circuit granted a temporary stay, following that decision by issuing a grant of a permanent stay (pending outcome of appeal) on March 26, 2014.

As a result, Michigan’s Constitution remains in effect during the appeals process.