Marriage

Michigan's A.G. Declines to Explain Whether State Can Prosecute Those Who Perform Purely 'Private' Marriages

Says plaintiff lacks standing to sue because he's not facing charges.

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I am 99 percent sure that this is not what a polyamorous relationship actually looks like.
© Chris Curtis | Dreamstime.com

Can a state prohibit church leaders (or really, anybody) from "solemnizing" a marriage that is not intended to represent a legal contract for government recognition? If the couple (or more than two, for that matter) don't ever seek the benefits or privileges associated with matrimony, why should the state care?

That question is at the heart of a federal lawsuit filed by Detroit Pastor Neil Patrick Carrick against the state of Michigan. I wrote about his case last week. In short, state law appears to require the solemnization of any marriage to be handled in accordance to state law and be recognized by state law or else it is considered a misdemeanor crime. Carrick is suing, arguing that this is a violation of free speech.

Federal Judge Judith Levy responded to the lawsuit by asking both Carrick's side and the state of Michigan (as represented by Gov. Rick Snyder and Attorney General Bill Schuette) to answer a question: "Do Michigan's laws permitting civil and criminal sanctions of persons who improperly solemnize marriages authorize the State to impose those sanctions when the ceremony is purely private in nature, and not intended to have a legal effect?" Levy ordered both parties to submit their responses by last Friday.

The state of Michigan has opted not to answer the question. At all. Not even a hint. That's because the attorney general's office is trying to get the case dismissed because the plaintiff lacks standing to sue. That is because the state has not charged Carrick with violating the law in the first place: "since the statutes at issue have not been enforced, or even threatened to be enforced, currently or in the future against Plaintiff, he has not suffered the requisite 'injury in fact.'" Therefore, the state argues the court lacks any jurisdiction to hear the case, and it must be dismissed. And therefore the state doesn't actually have to indicate whether it believes the law can be enforced even against private marriages. Furthermore, the brief states that even if the current governor and attorney general gave a response, it would have no legal consequences and would not bind future administrations to any sort of legal interpretations.

A very technical dodge of the question at hand that left Carrick frustrated. He responded via email, "I would [have] lived with a consent order saying they would not apply these laws to religious ceremony participants who had no intention to have them legally recognized as a licensed marriage or like."

But government attorneys are not inclined to declare a tool off-limits unless they're forced (either by courts or circumstances) to do so. Carrick knows this, and that's one of the reason he pursued the lawsuit. As he explained to me last week, and as his lawyers include in his brief, lawyers and courts can use old, seemingly archaic laws to punish folks even though the rules are completely outdated. They noted a child custody case in which Michigan's law against cohabitation, established in 1931, is invoked.

While I am not a lawyer and wouldn't even call myself a legal expert, the lack of standing may be a pretty big legal issue. If a law is not being enforced, it's very tough for citizens to challenge, even if it's still on the books. If nothing else, Carrick may have just guaranteed that they won't try to charge him with violating the law anyway.

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  1. “If nothing else, Carrick may have just guaranteed that they won’t try to charge him with violating the law anyway.”

    Yeah, unless they don’t like fingers being poked in their eyes, in which case they might just go ahead and charge him.

  2. “since the statutes at issue have not been enforced, or even threatened to be enforced, currently or in the future against Plaintiff, he has not suffered the requisite ‘injury in fact.'”

    I’m sorry, but did this motherfucker just try to say that having a statute on the books wasn’t a direct threat of enforcement?

    1. He is saying “wait until you are charged”.

      Cretin.

    2. Let me translate that for you, dude:

      “We’re gonna do whatever the fuck we want. K Thx Bye.”

    3. I’m glad you brought this up, ’cause I just came here to make that point.

      I have been told, by commenters right here on these boardz that just ’cause there’s a law on the books, if it’s not being enforced, then hooray Libertarian moment. [insert comment about hoping Darth Vader doesn’t further alter the deal]

      This exact precedent has been used before vis-a-vis Washington’s gun “transfer” law requiring background checks for ALL transfers– transfer not defined.

      According to the judge, since no one had been prosecuted– ie “harmed” by the law, then the suit had no standing and it was summarily dismissed. That the plaintiffs would have to wait until someone got hammered by the state before they could sue.

  3. Detroit Pastor Neil Patrick Carrick

    Doogie Hauser is suing Michigan?!??!?!

    1. Law-suit up!

  4. Prior restraint doesn’t create standing?

    1. Prior restraint is apparently a myth, since the existence of a statute is not a threat to enforce same.

  5. Prosecutors like to keep these blue laws in their back pockets just in case it’s all they can get on someone who runs afoul of the wrong person.

  6. In general, I remember learning back in law school that a government promise not to enforce a law doesn’t moot a case.

    But then again, FYTW.

    1. you know what I learned in Business Law? Aside from Prof. Johnston prefers Tanqueray on the rocks? That just because a law is deemed invalid does’t not mean you don’t have to finish your sentence. Clemency is evidently a separate process that may take the rest of your sentence to complete. Strange that.

  7. Can a state prohibit church leaders (or really, anybody) from “solemnizing” a marriage that is not intended to represent a legal contract for government recognition?

    No. Next question.

  8. Prosecutors like to keep these blue laws in their back pockets just in case it’s all they can get on someone who runs afoul of the wrong person. That is correct. Prosecutors like to prosecute people who piss them off. But, be that is may, as all true progressive turds will tell you, force is necessary to implement their policies in order to achieve a true socialist slave state. But then, isn’t that why government was made in the first place? To have the ruling elitist filth force their asinine values on us little people?

  9. “Can a state prohibit church leaders (or really, anybody) from “solemnizing” a marriage that is not intended to represent a legal contract for government recognition? If the couple (or more than two, for that matter) don’t ever seek the benefits or privileges associated with matrimony, why should the state care?”

    How on Earth is this not a massive first amendment violation? So the basic argument is you can’t stand up and say things without the government go ahead.

    How can there be any law regarding the ‘solemnizing’ section of the marriage since that has nothing to do with the contract side and is nothing more than speech?

    “Therefore, the state argues the court lacks any jurisdiction to hear the case, and it must be dismissed. And therefore the state doesn’t actually have to indicate whether it believes the law can be enforced even against private marriages.”

    Aren’t all marriages private marriages or is my loving bond with any potential future wife* state property?

    *Or husband. I’m not gay, I’m just really annoying so I figure I should leave my options open given the likely possibility no woman will ever want me.

    1. How on Earth is this not a massive first amendment violation? So the basic argument is you can’t stand up and say things without the government go ahead.

      Free speech should be licensed, taxed and regulated.

      1. Paul, I hereby declare you and Nikki to be married.

        I’m pretty sure I just violated Michigan state law.

        1. Depends…was that solemnly?

        2. If Nikki out-earns me, I’m on board.

          1. Nikki’s a woman so she’s constitutionally guaranteed to make only 77% of what you make.

            1. I suspect Nikki’s never met someone with my ambition.

              1. Your ambition of being a gold digger?

    2. If women wont like you then I doubt men will either…you had best ring up Warty or STEVE SMITH. They are sure to respond, in some fashion.

      1. I don’t get it, man. Every girl leaves me the instant I unshackle her.

        1. Thats weird bro. Have another hit and hit the clubs again, it is sure to turn around soon.

  10. “State law appears to require the solemnization of any marriage to be handled in accordance to state law and be recognized by state law or else it is considered a misdemeanor crime. Carrick is suing, arguing that this is a violation of free speech.”

    So this was meant to prohibit gay marriages and such back when they were illegal?

    Def. need to get the government out of the marriage business.

    Besides, insha’Allah, me, my gay dog, two cats from the neighborhood, and a corpse all want to marry each other in a freak out ceremony in Dearborne next weekend. And if I can’t find an Imam to do the ceremony–and bake us a wedding cake–I’m gonna sue the fuck out of one of them, of course, but I’ll need someone as a backup to meaninglessly solemnize our freak vows.

    ARF! ARF! ARF! ARF! ARF!

    1. So this was meant to prohibit gay marriages and such back when they were illegal?

      The goal is to bend the bad laws in your direction, not get rid of them.

      1. I suspect the goal is to somehow keep gay marriage in the news.

        1. If your relationship doesn’t belong to the state, then who does it belong to, smart guy?

          1. Along with the intriguing developments on marriage news out of Michigan today (nothing happened), here’s another short list of fascinating things that didn’t happen:

            1) Angela Merkel didn’t goose a Syrian asylum seeker on camera.
            2) Barack Obama didn’t launch nuclear strikes against ISIS.
            3) The Catholic church didn’t announce that it was going public in an IPO on NASDAQ.
            4) Sean Penn didn’t take over as the new head of the Sinaloa cartel.

            We didn’t hear about any of those non-events, though, because they don’t have anything to do with gay marriage.

    2. ARF! ARF! ARF! ARF! ARF!

      why are you calling Shrike? isn’t he reason’s pet yorkie) He doesn’t have a dog in this fight.

  11. Standing is not something that is addressed in the constitution – it is purely a concoction of the judicial branch. A concoction, I might add, that the constitution does not give the judges the power to create.

    The term “cases and controversies” is not defined in the text of the constitution. Therefore, one is an intellectual lightweight if one argues, “but, but, colonial judges had already started to develop the doctrine of standing, so therefore the term must be read in that light”.

    1. Concoction seems a bit strong. I can’t sue over a harm done to my neighbor. The person harmed can bring the suit.

      In practice, applying this same logic to government actions leads to government officials being immune so long as the courts can’t point to any one person as being the victim of illegal behavior taken by said government officials. Is it perhaps more accurate to say that this principle is being misapplied than to say that it’s “purely a concoction of the judicial branch”?

      1. Concoction.

        Yeah, in the world of conceiving, creating, developing, designing, inventing, making, etc., concocting is the runt of the litter because it could mean making things up or fabricating something, but, it does also mean creating and inventing. It is often used pejoratively – as I did.

        To be honest, I use the word to be synonymous with creating, inventing, making in my everyday parlance. Sure, there are times when I will consciously use in a negative sense as the word does have that history.

        At any rate, it was the judiciary that conceived of the doctrine of standing.

        Of course, when discussing standing, context matters. Yes, you are right: if your neighbor is harmed by another, you can’t sue the other unless your neighbor has authorized you or you are his attorney-in-fact pursuant to a lawfully executed power of attorney.

  12. This seems like an opportunity to dub marriages “barely legal”.

    1. Marrying girls the day they reach age of consent or to their first cousin also qualify.

    2. I have never heard nor understood the legal justification for the state sanctioning marriage. It never jived with my reading of the constitution of the Fed or the several states I have read.

      It just seems to be. Kinda like gravity and wife’s my disappointment in me, just kind of constant and always has been there.

      1. It’s an extension of the time when church and state were heavily intertwined. Now state-sanctioned marriage is a policy tool.

  13. I’m curious how the Michigan AG justifies not answering a direct question from a judge, but that’s between the two of them, I guess.

    Now, if Michigan’s constitution were still in force, they could get rid of the case under Art. I, ? 25 – “To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union *for any purpose*.” (emphasis added)

    The statute bans the solemnization of an unlicensed *marriage.* So if we accept that the union of two guys, or two gals, isn’t marriage (as the state constitution says), then of course it would not be a crime to solemnize such a union, since it wouldn’t be a marriage.

    Now that we’ve had the Michigan Constitution overruled by the Gay Clause of the U.S. Constitution, of course, the situation has changed.

    1. What did Gay Clause give you for Christmas?

      /H&R snark

      1. An absolutely *amazing* pair of new shoes.

  14. Says plaintiff lacks standing to sue because he’s not facing charges.

    I have never understood the concept of “standing”. It seems like being told you can’t complain about the quality of a product you didn’t personally buy. Would someone *kindly* explain “standing”.

    1. Basically, the idea is that the reason you get to sue someone is that they’re doing something illegal which hurts you.

      The purpose of suing the person is to order the illegal behavior to stop, and/or to have the person compensate you for injuring you.

      If someone’s allegedly illegal behavior doesn’t hurt you, then it’s none of your business and if you sue you’re just an officious intermeddler in other people’s business.

      That’s the theory. Of course, it’s not universally accepted, and one could say that any citizen has an interest in seeing the law enforced. But the courts haven’t generally gone that far.

      1. But of course, *if* there’s a law against something you want to do, I’d say you have the right, if the law is unconstitutional, to get a court order to protect you from the law.

        But that argument, amazingly, sometimes doesn’t work for (allegedly) unenforced laws.

  15. So, if the feds were to put a law on the books prohibiting any criticism of a member of Congress or the President, nobody could sue to have the law overturned unless and until they had been arrested for violating it?

    I don’t think it really works that way. Or, if it does, it shouldn’t. To rule otherwise is to state that the “chilling effect” of “prior restraints” on speech isn’t a real harm, which goes against vast swathes of 1A law.

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