This past Sunday, we reported on how the Sixth Circuit had acted swiftly in issuing a temporary stay of last Friday’s order by Judge Bernard A. Friedman of the Eastern District of Michigan which struck down Michigan’s ban on same-sex marriage.  See Judgment, DeBoer, et al. v. Snyder, et al., Case No. 12-cv-10285 (E.D. Mich.).  The temporary stay was entered in response to an emergency motion filed by Michigan’s Governor and Attorney General on Friday evening. 

The Sixth Circuit has just extended the stay of Judge Friedman’s order until final disposition of Michigan’s appeal.  See Order, DeBoer, et al. v. Snyder, et al., Case No. 14-1341 (6th Cir.).  That means that same-sex marriages will not go forward in Michigan any time soon.

Ordinarily, Rule 8(a) of the Federal Rule of Appellate Procedure requires that a stay pending appeal be brought first in the district court.  The Sixth Circuit, however, may grant relief if “the district court denied the motion or failed to afford the relief requested.”  Fed. R. App. P. 8(a)(2)(A)(ii).  In this case, Michigan’s counsel had asked Judge Friedman during oral argument to stay his order in the event that he ruled in favor of the plaintiffs, who are challenging the constitutionality of Article I, § 25 of the Michigan Constitution .  That constitutional provision provides that marriage is “the union of one man and one woman.”  The Sixth Circuit stated that in light of Michigan’s request to Judge Friedman, and his subsequent failure to afford relief, “the requirements of Rule 8 have been substantially met.”  Accordingly, the Sixth Circuit granted the requested stay pending appeal.

As noted, we will continue to follow this high-profile case as it makes it way to oral argument.  Expect this case to attract numerous amici, who will weigh in on one of the signature legal issues of the year.