U.S. Supreme Court ruling may strengthen efforts to overturn Michigan’s same-sex marriage ban
July 2, 2013
HAZEL PARK — Recent rulings by the highest court could shape the outcome of an ongoing case in Michigan, where a lesbian couple from Hazel Park seeks to lift the state’s ban on gay marriage — a ban approved by Michigan voters in 2004.
In a historic 5-4 decision June 26, the U.S. Supreme Court struck down the federal Defense of Marriage Act (DOMA), declaring it unconstitutional to deny legally married same-sex couples the same federal benefits enjoyed by legally married opposite-sex couples. And in a separate ruling the same day, the Supreme Court maintained a ruling by a district court that said California’s Proposition 8 ban on same-sex marriage was also unconstitutional.
Even though neither ruling resulted in any blanket statements about the legality of same-sex marriage nationwide, the plaintiffs in the Michigan case are feeling renewed confidence. On the Monday following the Supreme Court rulings, U.S. District Judge Bernard Friedman, of the Eastern District of Michigan, announced that he will continue hearing the case; he is expected to announce the trial date at a hearing July 10. Previously, he had stayed his decision in March, opting to take a wait-and-see approach with regard to the U.S. Supreme Court on DOMA and Proposition 8.
The case may go to the 6th Circuit regardless of who wins or loses, and from there to the U.S. Supreme Court, should they choose to accept it. This, in turn, may lead the Supreme Court to decide whether states have a right to deny same-sex couples the ability to legally marry, said Dana Nessel, a Detroit-based attorney representing the Hazel Park couple alongside Ann Arbor-based attorney Carole Stanyar.
“There are 13 states, plus the District of Columbia, that allow same-sex marriage. This case could pave the way not only for same-sex couples and their families in Michigan, but potentially for the families in the other states for which there are bans still in place,” Nessel said the day after the Supreme Court ruling. “We’re very optimistic. We have great faith that Judge Friedman will do the right thing here, and we’re excited for the outcome. We’re very much looking forward to it.”
All about the children
The plaintiffs in the Michigan case are April DeBoer and Jayne Rowse, of Hazel Park, a same-sex couple who have been in a committed relationship for more than 13 years, and living together for seven years. The main reason they are pushing to lift the ban on same-sex marriage is out of concern for the well-being of their kids.
The couple have three special-needs children they adopted when the kids were just newborns — one surrendered by a homeless woman, one abandoned by a drug-addicted prostitute and another born to a 19-year-old woman.
They saved their children from potentially rough upbringings. Now, they’re fighting to share joint guardianship of them, so their children can have the same rights under both parents.
Michigan’s current adoption code says only married couples or single parents can adopt a child. Earlier this year, the code was amended to even allow one-half of a married couple to adopt. Yet unmarried couples, both hetero- and homosexual, cannot adopt.
And for same-sex couples, this poses a problem, since they also can’t legally marry. Not only is there Michigan’s 2004 ban on same-sex marriage, but other arrangements that provide benefits similar to marriage, such as civil unions and domestic partnerships, are also not legally recognized.
As such, if something happened to Rowse, the children she adopted — 4-year-old Nolan and 3-year-old Jacob — would receive no benefits from DeBoer. Likewise, if something happened to DeBoer, Rowse would have no rights to 3-year-old Ryanne, the child DeBoer adopted.
Even though the three children share the last name “DeBoer-Rowse,” they could be torn apart as a family if someone were to step in and try to claim them, in the event of the loss of one parent. They would be separated from their siblings, their grandparents and their only remaining parent.
“Jayne and I are married in our minds,” DeBoer previously said. “We don’t have the legal paperwork to show for it, but not having a legal marriage doesn’t affect our relationship. What it does affect is our children’s relationship. It keeps us from being a complete family that others can’t come in and take apart.”
The ongoing case
Originally, in January 2012, DeBoer and Rowse filed a federal lawsuit against Gov. Rick Snyder and Attorney General Bill Schuette in U.S. District Court, saying it’s unconstitutional for the state to keep unmarried couples from adopting, and asking the judge to block state judges from enforcing the law.
Since then, they’ve changed their case to address the same-sex marriage ban, the first time it’s been challenged since 2004. The shift in focus occurred when the state tried to have the case dismissed, only for Friedman to identify the same-sex marriage ban as the “underlying issue” in the motion hearing.
The plaintiffs argue the same-sex marriage ban is in violation of the Equal Protection clause of the 14th Amendment, which is often interpreted as an attempt to honor the concept of “all men are created equal.”
They contend there is no rational basis for the state to discriminate in this manner, and that the law is not tailored narrowly enough to avoid clashing with the Equal Protection clause.
Back in March, Nessel noted that census data indicates a large percentage of same-sex families in Michigan have children, “so many people are suffering as a result of this (ban),” she said. She also pointed out that in Massachusetts, where same-sex marriage was legalized, the family unit did not deteriorate, as opponents feared, but instead marriages increased and divorces decreased — heterosexual couples included.
“I see lots and lots and lots of families that are hurt by the ban (in Michigan), but I don’t see anyone who benefits from the ban,” Nessel said at the time. “It’s an antiquated notion that there is only one kind of family, and that that kind is always best for children. That’s not our viewpoint, nor is it the viewpoint of any psychologist or sociologist. Children will be well-adjusted if they’re raised by loving parents, irrespective of their (parents’) sexual orientation.”
In a state defendants’ reply brief issued in December, the attorney general’s office maintained that “Michigan’s laws defining marriage as being between a man and a woman are valid and beyond federal constitutional challenge,” saying that when other states have decided to alter the definition to allow same-sex marriage, it was first approved by voters.
The statement also said that the plaintiffs “fail(ed) to show that there is any fundamental right to a same-sex marriage,” and that they failed also to prove the same-sex marriage ban was “passed because of any alleged animosity toward individuals based on sexual orientation.” They also indicate that the state defendants’ position is the same-sex marriage ban “promotes a legitimate state interest in raising children in an ideal home environment with both a mother and a father.”
In an email following the Supreme Court ruling, Sara Wurfel, press secretary for Gov. Rick Snyder, said, “The governor has a responsibility to uphold the Michigan Constitution, and that’s something he takes seriously and will continue to do. If voters decided to change Michigan’s provision, he’d uphold and respect that, as well. He’s focused on Michigan’s continued comeback, jobs, a healthy Michigan and our kids.”
Nessel said marriage isn’t something that should be defined at the ballot box.
“We believe you don’t get to vote on people’s civil rights, and that’s why we think it should be resolved by the judiciary,” Nessel said. “People are enshrined with inalienable rights under the constitution, which affords equal protection of the law to all people.”
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