‘In the end, we were an army’

Local reaction as Supreme Court rules in favor of same-sex marriage

By: Andy Kozlowski | C&G Newspapers | Published July 2, 2015

METRO DETROIT — In a landmark decision June 26, the U.S. Supreme Court ruled that same-sex couples have a constitutional right to marry — a successful outcome for one of the largest civil rights movements in recent history.

The ruling will reverse laws in 13 states that still ban same-sex marriage, Michigan included. Same-sex couples will now be able to marry in all 50 states, plus the District of Columbia. 

“(The U.S. Supreme Court) reaffirmed that all Americans are entitled to the equal protection of the law — that all people should be treated equally, regardless of who they are or who they love,” President Barack Obama said during a press conference that morning. “This ruling will strengthen all of our communities by offering to all loving same-sex couples the dignity of marriage across this great land.”

The court ruled 5-4 on the issue. Justice Anthony Kennedy was the swing vote, siding with justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. Chief Justice John Roberts, along with justices Antonin Scalia, Clarence Thomas and Samuel Alito, voted to uphold the ban. 

The U.S. Supreme Court examined cases brought forth by petitioners from Michigan, Kentucky, Ohio and Tennessee. The Michigan and Kentucky cases examined whether the 14th Amendment requires a state to allow same-sex marriage. The 14th Amendment is often interpreted as an attempt to honor the concept that “all men are created equal.”

Michigan’s case was brought forth by April DeBoer and Jayne Rowse, a lesbian couple from Hazel Park, who challenged Michigan’s same-sex marriage ban so they could marry and ensure that their adopted children have the same rights under both parents.

Another issue the court examined was whether the 14th Amendment requires states that ban same-sex marriage to recognize same-sex marriages from states that allow them. This issue was brought forth by the petitioners from Kentucky, as well as Ohio and Tennessee.

Now that same-sex marriage will be legal in all 50 states, this will no longer be an issue. 

The landmark decision is called Obergefell v. Hodges, named after the Ohio case, since Ohio had the lowest assignment number among the consolidated cases.

A new era
During a conference in Ann Arbor following the ruling, Carole Stanyar, one of the attorneys representing DeBoer and Rowse, thanked all of the people who helped fight for marriage equality.

“In the end, we were an army — private citizens, grass-roots. Good people trying to do the right thing,” Stanyar said. “This was a definitive statement under equal protection, fundamental right, liberty, due process. It was for now and for future generations. The bans are unconstitutional; states cannot treat people this way — they cannot treat people unequally. Same-sex couples, their families, their children have to be treated with dignity and respect.”

During the same conference, DeBoer said she and Rowse are planning to get married soon — possibly before the end of the summer. The crowd of supporters erupted in cheers.

Others who represented DeBoer and Rowse include attorneys Dana Nessel and Kenneth Mogill, as well as Robert Sedler, a law professor at Wayne State University, and Mary Bonauto, director of the Civil Rights Project at Gay and Lesbian Advocates and Defenders. Bonauto argued before the Supreme Court during the hearings back in April.

Nessel said it’s been an amazing journey.

“I so much want to thank all of my co-counsel on this. Such amazing, amazing attorneys,” Nessel said. “You know, when you go to law school, you think, ‘One day I hope to do something noble and that’s good for the world.’ I think most people don’t expect they’ll see something like this on their plate at some point. But I have to say that none of this would’ve been possible without these incredible people.”

Megh Hollowell, program manager at Affirmations, a nonprofit LGBT community center in Ferndale, said the equal rights movement has come far.

“Affirmations believes that everyone, regardless of sexual orientation or gender identity, is equal and deserving of the same rights and protections all other citizens enjoy, including the right to marry,” Hollowell said. “We will gather and celebrate today because we are proud of the progress we’ve made as a community thus far.”

Gov. Rick Snyder said in a statement that he will stand by the Supreme Court’s decision.

“Same-sex marriage has been a divisive issue in Michigan and across our country. Recognizing that there are strong feelings on both sides, it is important for everyone to respect the judicial process and the decision today from the U.S. Supreme Court,” Snyder said. “Our state government will follow the law, and our state agencies will make the necessary changes to ensure that we will fully comply.

“Let’s also recognize, while this issue has stirred passionate debate, we now should focus on the values we share,” he said. “With this matter now settled, as Michiganders we should move forward positively, embracing our state’s diversity and striving to treat everyone with the respect and dignity they deserve.”

The opinions
Justice Kennedy delivered the majority opinion, joined by the other justices in favor of marriage equality. He wrote that denying same-sex couples the right to marry is in violation of the 14h Amendment’s Equal Protection and Due Process clauses, and creates “a grave and continuing harm.”

In the case of petitioner James Obergefell, a plaintiff in the Ohio case, Obergefell met John Arthur more than 20 years ago. They fell in love and formed a committed relationship. When Arthur was diagnosed in 2011 with ALS, a progressive disease with no known cure also referred to as Lou Gehrig’s disease, the couple resolved to marry before Arthur died.

This required them to travel from Ohio to Maryland, where same-sex marriage was legal — a challenging task, since Arthur was so sick he could hardly move. They were wed inside a medical transport plane on the tarmac in Baltimore. Arthur died three months later. Ohio law prevented Obergefell from being listed as the surviving spouse on Arthur’s death certificate — something incredibly hurtful that drove Obergefell to challenge the law.

For Army Reserve Sgt. 1st Class Ijpe DeKoe and his partner, Thomas Kostura, co-plaintiffs in the Tennessee case, the two married in New York before DeKoe deployed to Afghanistan in 2011. When he returned, they settled in Tennessee, where DeKoe works full-time for the Army Reserve. This led to marriage recognition issues.

“Their lawful marriage is stripped from them whenever they reside in Tennessee, returning and disappearing as they travel across state lines,” Kennedy wrote. “DeKoe, who served this nation to preserve the freedom the Constitution protects, (must have endured) a substantial burden.”

And in the case of DeBoer and Rowse, the concern was for their children. The couple held a commitment ceremony in 2007, honoring their permanent relationship. Both work as nurses: DeBoer in a neonatal unit, and Rowse in an emergency unit. In 2009, they fostered and adopted a baby boy; the same year, they took in another son — a premature birth, abandoned by his biological mother, requiring constant care. In 2010, they adopted a baby girl with special needs. More recently, they adopted a fourth child.

Since Michigan only permits opposite-sex married couples or single individuals to adopt, each child could only have one woman as his or her legal parent. If something happened to DeBoer or Rowse, the survivor would have no right to the other’s children. Likewise, if there was an emergency with the kids, schools and hospitals could treat them as though they had only one parent.

This led DeBoer and Rowse to challenge the state’s ban on same-sex marriage, approved by voters in 2004. Part of their argument was that the whim of the popular majority cannot infringe on the rights of the minority. This argument found agreement with Judge Bernard Friedman, of the U.S. District Court for the Eastern District of Michigan, when he ruled in March 2014 that the state’s ban was unconstitutional.

Judge Martha Craig Daughtrey, of the 6th U.S. Circuit Court of Appeals, who examined the case when the state appealed, also agreed. The other two judges in the 6th Circuit sided with the state. At that point, the case went to the U.S. Supreme Court.

Kennedy wrote that same-sex couples provide loving and nurturing homes to their children, and that marriage affords stability that is good for children.

“Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry,” Kennedy wrote. “Without the recognition, stability and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples.” 

During arguments in April, the states argued that they have a vested interest in keeping marriage between one man and one woman in order to regulate procreation. This line of logic came under heavy scrutiny, with several justices noting that states don’t deny marriage to couples that can’t or won’t have children, and that heterosexual couples are no more likely to stay together than gay and lesbian couples. 

In his dissenting opinion, Chief Justice Roberts wrote, “This court is not a legislature,” and, “Whether same-sex marriage is a good idea should be of no concern to us.” He explained that “judges have the power to say what the law is, not what it should be,” and that in his view, “the fundamental right to marry does not include a right to make a state change its definition. … The people of a state are free to expand marriage to include same-sex couples or to retain the historical definition.” The way he sees it, “five lawyers” have shut down a “vibrant debate.”

Kennedy addressed this argument in his opinion, saying there has been abundant debate on the subject. In addition, he wrote, “The Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights. … An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act.”

Past precedent for this includes Loving v. Virginia (1967), a landmark civil rights case in which the U.S. Supreme Court ended laws banning interracial marriage. The decision to do so was unpopular with many people at the time, but the court ended that discrimination out of respect for constitutional rights.

In his own dissenting opinion, Justice Thomas said he does not see the lack of same-sex marriage as demeaning to gay and lesbian couples. He said the nation has long believed that human dignity is innate.

“The corollary of that principle is that human dignity cannot be taken away by the government,” Thomas wrote. “Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.”

Kennedy disagreed, saying the issue of marriage equality absolutely is a dignity issue.

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family,” Kennedy concluded. “(The plaintiffs) ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

Staff Writer Josh Gordon contributed to this report.