A previous entry in this series of posts discussed Obergefell v. Kasich, No. 1:13-CV-501, 2013 WL 3814262 (S.D. Ohio July 22, 2013) (see article below entitled "Is DOMA § 2 Next?"). Obergefell granted a preliminary injunction requiring Ohio to recognize a Maryland same-sex marriage, holding that Ohio constitutional and statutory provisions barring such recognition were likely unconstitutional. Ohio would recognize out-of-state marriages between persons of the opposite sex, the court held, and there was no rational basis for failing to likewise recognize out-of-state marriages between persons of the same sex.
But other courts have taken a different view of these provisions. A good example is the unpublished decision in Stankevich v. Milliron, No. 310710, 2013 WL 5663227 (Mich. Ct. App. Oct. 17, 2013). The plaintiff in Stankevich was a woman who married the child's mother in Canada. The couple then moved to Michigan. The couple jointly raised a child, who was born to the mother.
When the relationship broke down, the plaintiff sued for custody and visitation. The mother moved to dismiss, arguing that the plaintiff lacked standing. In custody cases in which a parent is a party, Michigan gives standing only to other biological parents. Mich. Comp. Laws Ann. § 722.25(1); Bowie v. Arder, 441 Mich. 23, 490 N.W.2d 568 (1992). A court-created doctrine of equitable adoption gives standing to spouses of parents, but it does not apply to partners who are not spouses. Van v. Zahorik, 460 Mich. 320, 597 N.W.2d 15 (1999).
The plaintiff argued that she was the spouse of the mother because the Canadian marriage
should be recognized. The trial court disagreed, and the appellate court affirmed:
Furthermore, plaintiff's suggestion that she is married for the purposes of the [Child Custody Act] is contrary to the law in Michigan. Earlier this year in United States v. Windsor, ___ U.S. ___; 133 S Ct 2675, 2689-2690; 186 L.Ed.2d 808 (2013), the United States Supreme Court reiterated, in the context of the Defense of Marriage Act (DOMA), that "[b]y history and tradition the definition and regulation of marriage . . . has been treated as being within the authority and realm of the separate States." The Court affirmed that "[t]he definition of marriage is the foundation of the State's broader authority to regulate the subject of domestic relations with respect to the protection of offspring, property interests, and the enforcement of marital responsibilities." Id. at 2691 (quotation marks, citation, and brackets omitted).
Stankevich, 2013 WL 5663227, at *3. The court relied expressly on statutory and constitutional provisions barring recognition of same-sex marriages. "As we are bound by the Michigan Constitution and the plain statutory language, we agree with the trial court that plaintiff is not a
parent as defined under the [Child Custody Act] or the equitable parent doctrine, and therefore lacks standing to bring this action." Id. at *4.
The plaintiff in Stankevich did not make an express constitutional attack upon the statutes and constitutional provision at issue. Nevertheless, the tone of Stankevich suggests that such a claim would probably have been rejected. The provision quoted above relies heavily upon language in Windsor suggesting that states are free to recognize or not recognize same-sex
marriage. Those provisions informed the court's analysis, but they were secondary to the court's primary holding that DOMA was motivated by anti-gay prejudice.
Obergefell paid primary attention to the actual holding in Windsor, holding essentially that restrictions on recognition of same-sex marriage must be supported by some rational basis other than prejudice. Finding no such basis, the court suggested that Ohio's constitutional and statutory provisions against recognition of same-sex marriage were likely unconstitutional.
Stankevich, by contrast, emphasized earlier passages in the Windsor opinion noting that recognition of marriages has long been an area controlled by state law. If states have a broad right to recognize or not recognize same-sex marriages, then no special justification is needed for a state to choose the latter option. A state may choose to not recognize same-sex marriages, and the constitutional and statutory provisions cited by the court clearly show that Michigan has exercised that right.
The basic split between Obergefell and Stankevich is a logical and probably inevitable result of the way in which the majority opinion in Windsor was written. At points, that opinion stressed the long history of deferring to state law on the recognition of marriages, suggesting that states are free to choose to not recognize same-sex marriages. At other points, the court suggested that prohibitions on the recognition of same-sex marriages are often motivated by anti-gay prejudice and, therefore, to some degree inherently suspect. It will probably require additional litigation in the Supreme Court to resolve the conflict between these approaches.