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August 14, 2014

Michigan’s same-sex marriage case heard by Sixth Circuit

Verdict on constitutionality of state ban expected in coming months

By Andy Kozlowski
C & G Staff Writer

METRO DETROIT — The case for same-sex marriage equality in Michigan has now reached the U.S. Court of Appeals for the Sixth Circuit, where it was heard alongside similar cases from three other states.

Whichever way the verdict falls — either in favor of the plaintiffs, a lesbian couple from Hazel Park who challenged Michigan’s voter-approved ban on same-sex marriage, or in favor of the state, which seeks to uphold the ban — the case will likely be considered by the U.S. Supreme Court when the other side appeals it.

But first, the Sixth Circuit needs to deliver a verdict, which is not expected to happen until the fall. The case was heard by three judges in Cincinnati Aug. 6: Judge Martha Craig Daughtrey, appointed by President Bill Clinton; Judge Deborah L. Cook, appointed by President George W. Bush; and Judge Jeffrey Sutton, also appointed by Bush.  

Over the course of three hours, six same-sex marriage cases were heard from the states of Michigan, Ohio, Kentucky and Tennessee. Michigan and Ohio each got an hour, split into 30 minutes for the plaintiffs and 30 minutes for the defendants. The last hour focused on Kentucky and Tennessee, each side for each state getting 15 minutes.

At one point, Judge Daughtrey asked Aaron Lindstrom, Michigan’s solicitor general, how banning same-sex marriage is any different from banning interracial marriage. Numerous states didn’t allow interracial marriage until the U.S. Supreme Court’s 1967 decision, Loving vs. Virginia. Lindstrom said race doesn’t play a role in the definition of marriage, while gender does.

Daughtrey seemed unconvinced and noted that everything has been fine in Massachusetts in the years since same-sex marriage became legal.

At another point, Judge Sutton questioned the plaintiffs, asking why they’re taking this issue to the courts rather than letting democracy settle it at the ballot box. One of the attorneys for the plaintiffs, Dana Nessel, said in a phone interview following the hearings that everyone needs to be guaranteed certain protections.

“If minorities in this country have to wait until the majority in a democratic election say they deserve to have constitutional rights, then why have the constitution at all? If that’s the case, an election could just determine when a majority wants to discriminate against someone based on race, religion, gender or whatever. It would just let the majority rule,” Nessel said. “But that’s not how it is in America. We have a constitution that limits democracy to the extent that it does not allow the will of the majority to infringe on the rights of the minority. And I think it’s disparaging to say to someone, ‘Just wait your turn, and someday you’ll have your rights.’” 

Joy Yearout, director of communications for Michigan Attorney General Bill Schuette, said in an email that they anticipate this case will continue to the highest court in the land.

“Attorney General Schuette is fulfilling his duty to defend the (state) constitution,” Yearout wrote. “Ultimately, we expect this issue to be decided by the U.S. Supreme Court, most likely via Utah’s case, which is further along than Michigan’s. We hope to see a resolution as soon as possible.”

The long-fought battle
In March, U.S. District Judge Bernard Friedman, of the Eastern District of Michigan, declared the same-sex marriage ban to be unconstitutional, saying it 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.”

Afterward, Schuette filed for an emergency request for stay and appeal of the judge’s ruling against Article 1 Section 25 of the Michigan Constitution, also known as the Michigan Marriage Amendment. The request was filed with Sixth Circuit.

The challenge to the same-sex marriage ban, approved by voters in November 2004, was brought forth by April DeBoer and Jayne Rowse, a lesbian couple from Hazel Park. The two women have lived together for the past eight years 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.

DeBoer and Rowse challenged the same-sex marriage ban so they can marry and share joint guardianship of their three special needs children; that would ensure 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. By marrying, DeBoer and Rowse can keep their family together in the event that something happens to one of them. 

The defendants in the case are listed as Gov. Rick Snyder and Schuette, representing the state of Michigan. Central to the state’s case was their 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.

On that note, in the state’s appellate briefs in defense of the Michigan Constitution, filed with the Sixth Circuit, they say it is wrong to suggest 2.7 million people voting in favor of the ban don’t have a rational reason for doing so.

In a 31-page opinion issued March 21, Judge Friedman explained his own rationale for striking down the ban as unconstitutional.

“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 concluded. “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, 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 judiciary in six other states made similar decisions in the preceding months. In December, a federal judge struck down Utah’s same-sex marriage ban; in January, a federal judge did the same for Oklahoma. In February, 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 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 decision of 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 through March 7, following which the judge took nearly two weeks to announce his decision.

Now everyone is waiting on the Sixth Circuit to render their own verdict. If it is announced in the fall, as expected, what happens next may hinge on the general election. If the state were to lose, and if Schuette failed in his bid for re-election as attorney general, his Democractic opponent may not choose to appeal the Sixth Circuit’s decision. 

For the plaintiffs’ part, Nessel said they plan to pursue it to the fullest extent, although she remains optimistic the Sixth Circuit will rule in favor of the plaintiffs, saying that to do otherwise would make them the first federal court to side with the state. She said she thinks the judges wouldn’t want their legacy to be that they were on the wrong side of history. 

“And frankly, I think the state of Michigan is ready to move on from this issue,” Nessel said. “Twenty-one states now have legal same-sex marriage, and as Judge Daughtrey noted, the sky hasn’t fallen in any of those states. So for our governor and attorney general who keep fighting this issue, it’s a losing battle for them, and the entire state of Michigan loses when they keep fighting this battle. The taxpayers lose, and thousands and thousands of good families and their children lose, as well.

“We’re hoping this issue is disposed of sooner, rather than later,” she said. “This all started in January 2012. It’s been a long time coming.”

You can reach C & G Staff Writer Andy Kozlowski at akozlowski@candgnews.com or at (586)279-1104.