Petitioners for marriage equality file briefs with U.S. Supreme Court

Hearings at end of April could lead to legalization of same-sex marriage nationwide

By: Andy Kozlowski | C&G Newspapers | Published March 11, 2015

METRO DETROIT — The legal team of the lesbian couple from Hazel Park challenging Michigan’s ban on same-sex marriage have filed their briefs with the U.S. Supreme Court. So have plaintiffs in similar cases out of Kentucky, Ohio and Tennessee.

“Regardless of what happens in the next few months, we’re confident these are the briefs that represent the right side of history,” said Dan Canon, one of the counsel for the Kentucky case, during a conference call with legal teams for all four states Feb. 27.

The hearings are set to begin the last week of April, with the high court expected to render a decision before the end of its term this summer. The plaintiff attorneys have yet to decide who will be making arguments. It is also not yet decided when the arguments will be made.

The Supreme Court will be examining two questions: 1) Do same-sex couples have a constitutional right to marry like straight couples? and 2) Must every state recognize same-sex marriages that are lawfully performed in other states?

Same-sex marriage is currently legal in 37 states, plus the District of Columbia. More than 50 federal courts have ruled in favor of same-sex marriage. Such a verdict from the Supreme Court would legalize same-sex marriage in every state.

Louise Melling, deputy legal director with the American Civil Liberties Union and co-counsel in the cases out of Kentucky and Ohio, called the issue of same-sex marriage equality “one of the greatest civil rights questions of our time.”

“More people are going to die before they have a chance to marry. More children are born without both their parents being legally recognized. More people face medical emergencies without being able to count on recognition of their spouses. And more couples and families face the stigma of second-class status,” Melling said. “So today … we’re asking the Supreme Court to finally do what’s right.”

The Supreme Court announced Jan. 16 that it would hear the case. The plaintiffs petitioned the Supreme Court once the Sixth Circuit Court of Appeals upheld Michigan’s ban on same-sex marriage, approved by voters in 2004. The Sixth Circuit delivered its opinion Nov. 6, three months after hearing arguments at its courthouse in Cincinnati.

Two of the three Sixth Circuit judges — Jeffrey Sutton and Deborah L. Cook, both appointed by former President George W. Bush — sided with the state, while Judge Martha Craig Daughtrey, an appointee by former President Bill Clinton, sided with the plaintiffs. In essence, Sutton and Cook said the people should decide whether same-sex couples have equal rights, while Daughtrey said the point of the judiciary is to protect the rights of the minority against the whims of the majority. Even so, the opinion of Sutton and Cook acknowledged that same-sex marriage equality seems inevitable.

The decision made the Sixth Circuit the first federal appellate court in over a year to rule against marriage equality, going against rulings in the Fourth, Seventh, Ninth and 10th circuits, among others. Their decision also overturned lower court decisions out of Kentucky, Ohio and Tennessee, the other three states now accompanying Michigan to the Supreme Court.

“The weight of this moment is not lost on me,” Melling said of the Supreme Court hearings. “We hope we’re in the home stretch for LGBT rights … the freedom to marry the people they love.”

From district to circuit
The Sixth Circuit hearings came about when the state appealed a federal district court ruling that struck down Michigan’s same-sex marriage ban as unconstitutional.

Last March, Judge Bernard Friedman, of the U.S. District Court for the Eastern District of Michigan, ruled that the ban violates the Equal Protection clause of the 14th Amendment of the U.S. Constitution, often interpreted as an attempt to honor the concept that “all men are created equal.”

In his 31-page opinion issued March 21, 2014, Friedman explained his rationale:

“In attempting to define this case as a challenge to ‘the will of the people,’ state defendants lost sight of what this case is truly about: people,” Friedman said. “No court record of this proceeding could ever fully convey the personal sacrifices of these two plaintiffs, who seek to ensure that the state may no longer impair the rights of their children and the thousands of others now being raised by same-sex couples.

“Today’s decision is a step in that direction,” he continued, “and affirms the enduring principle that regardless of whoever finds favor in the eyes of the most recent majority, the guarantee of equal protection must prevail.”

Federal judiciaries in six other states made similar decisions in the preceding months. In December 2013, a federal judge struck down Utah’s same-sex marriage ban; in January 2014, a federal judge did the same for Oklahoma. In February 2014, federal judges struck down same-sex marriage bans in Virginia and Texas. The same month, another federal judge ruled that Kentucky must recognize same-sex marriages from other jurisdictions. A federal judge ruled the same for Ohio in December 2013.

Then there are rulings by the U.S. Supreme Court, which in a 5-4 decision in June 2013, 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.

Friedman waited until after the Supreme Court decisions on DOMA and Proposition 8 to set a trial date for the fall of 2013, which in turn was delayed to 2014. Ultimately, the case was heard in a nine-day trial from Feb. 25, 2014 through March 7, 2014, after which the judge took nearly two weeks to announce his decision.

Since then, there have been other possible indicators where the Supreme Court may fall on the issue of marriage equality.

In early October 2014, the Supreme Court denied review of all the marriage equality cases pending before it, meaning same-sex couples in Indiana, Oklahoma, Utah, Virginia and Wisconsin are now free to marry.

And during a September 2014 speech in Minneapolis, Justice Ruth Bader Ginsburg hinted that people wondering about a possible Supreme Court review of the same-sex marriage issue should pay attention to what happens in the Sixth Circuit.

All about stability
What is now a quest for marriage equality originally started as something else entirely.

The Michigan plaintiffs, April DeBoer and Jayne Rowse, of Hazel Park, challenged the same-sex marriage ban so they could marry and share joint guardianship of their children, some of whom have special needs.

This would ensure that the children have the same rights under each parent. Michigan’s current adoption code says that only married couples, single parents, or one half of a married couple can adopt.

DeBoer and Rowse rescued their children from potentially rough upbringings. Adopted as newborns, one of the children was surrendered by a homeless woman, another was abandoned by a drug-addicted prostitute, and another was born to a 19-year-old. Last year, DeBoer and Rowse welcomed a fourth child to their family.

By marrying, DeBoer and Rowse can keep their family together in the event that something happens to one of them. The two women have lived together for the past decade and jointly own their residence. Both work in Detroit hospitals — DeBoer as a nurse in the neonatal intensive care unit, and Rowse as an emergency room nurse.

“The children are actually parties in our case,” said Carole Stanyar, one of the attorneys representing DeBoer and Rowse, during the conference call Feb. 27. “These laws (banning same-sex marriage) cause serious, persistent, wide-ranging injury to children in particular. The bans make children legal strangers to a mother (or father) who has raised them since birth. The child has no right of custody or even visitation with a non-legal parent. Children lose important economic protections: health insurance, social security, disability benefits, survivor benefits. And we know from the social science consensus and our trial testimony (in the DeBoer case) that children need adequate resources to thrive. Better resources correlate with better child outcome.

“The ban also brings psychological injury to children because many of them feel the non-permanence of their relationship with that second parent,” Stanyar continued. “The ban also humiliates children … (and) creates a stigma. These bans make it even more difficult for children to understand the closeness and integrity of their own family.

“Marriage brings stability to families,” Stanyar concluded. “It tells children they have, and will always have, two parents. Allowing their parents to marry dispels the notion (that) their families are inferior or second-tier. It brings dignity and respect to children and their parents.”

The defendants in the case are listed as Gov. Rick Snyder and Attorney General Bill Schuette, representing the state of Michigan. Central to the state’s case is its claim that a household with same-sex parents is not the “optimal” environment in which to raise children, and that the “will of the people” should be upheld from the vote in 2004. The attorney general has previously sworn to uphold Michigan’s ban on same-sex marriage.

“This case involves people of good will, sincerely motivated, on both sides,” Schuette said in a statement Feb. 27. “All of Michigan’s voters, as well as the citizens of our great nation, will be served by the court’s decision to decide this case and resolve such an important issue. I am pleased that the Supreme Court has chosen to review this case so that important issues involving the fundamental institution of marriage, our Constitution and the rights of voters will be decided.

“Court cases by their very nature create an adversarial atmosphere between those representing the two sides of the argument,” Schuette continued. “But in a democracy, reasonable people can disagree without being disagreeable. We look forward to the oral arguments being scheduled soon.”

In a previous statement issued Jan. 16, 2015, the governor called for clear instruction from the high court.

“We appreciate that the U.S. Supreme Court has agreed to hear an issue that has been divisive in our state and others. It’s important for the same-sex marriage question to be resolved once and for all at the highest level,” Snyder said. “I will respect the decision of the court on an issue that has stirred passionate discussion and hope that Michiganders and others across our country can come together as we move forward.”

Stanyar said she and her team are cautiously optimistic that the Supreme Court will settle the dispute in favor of marriage equality, once and for all.

“We hope with the filing today (Feb. 27), we’re one step closer,” Stanyar said.