New York Law School

Art Leonard Observations

Michigan may be the next state to defend its ban on same-sex marriage in a federal court trial.

Posted on: July 2nd, 2013 by Art Leonard No Comments

Senior U.S. District Judge Bernard A. Friedman, appointed to the court by President Ronald Reagan in 1988, ruled on July 1 that a Michigan lesbian couple is entitled to a trial of their claim that the state adoption law, forbidding same-sex couples to jointly adopt children, and the Michigan Marriage Amendment (MMA), forbidding same-sex marriages, violate their rights under the 14th Amendment.  Rejecting the state’s motion to dismiss the case, Judge Friedman cited the Supreme Court’s June 26 decision striking down Section 3 of the Defense of Marriage Act, U.S. v. Windsor, to support the “plausibility” of the couple’s constitutional claim.

April DeBoer and Jayne Rowse, the plaintiffs, are both employed as nurses and have lived together for six years.  Between them, they have adopted three children as single parents.  They would like to jointly adopt the three children to solidify their family relationship, but Michigan’s adoption law forbids it because they are not married, and the Michigan Marriage Amendment denies them the right to marry.

They filed suit in federal court, claiming that the state’s prohibition on joint adoptions by same-sex couples violates their equal protection rights.  In pre-trial arguments, Judge Friedman suggested that their challenge would not be complete if it was confined to the adoption law, and they amended their complaint at his suggestion to add a claim that the state’s ban on same-sex marriage violates their rights as well. 

The state moved to dismiss, arguing that the plaintiffs cannot show that the Michigan Marriage Amendment lacks a rational relationship to a legitimate state interest, and that there is no fundamental right under the constitution for same-sex couples to marry.

Friedman denied the motion, holding that the claims cannot be decided as a matter of law at this point, largely because of the Supreme Court’s DOMA decision.

On the one hand, he observed, there is language in that decision that defendants will cite, about the state’s “historic and essential authority to define the marital relation” (quoting from Justice Kennedy’s opinion).  “They will couch the popular referendum that resulted in the passage of the MMA as ‘a proper exercise of [the state’s] sovereign authority within our federal system, all in the way that the Framers of the Constitution intended,” he wrote, again quoting from Kennedy’s opinion.

On the other hand, of course, he asserted that “plaintiffs are prepared to claim Windsor as their own; their briefs sure to be replete with references to the newly enthroned triumvirate of Romer v. Evans, Lawrence v. Texas, and now Windsor.  And why shouldn’t they?  The Supreme Court has just invalidated a federal statute on equal protection grounds because it ‘place[d] same-sex couples in an unstable position of being in a second-tier marriage.’  Moreover, and of particular importance to this case, the justices expressed concern that the natural consequence of such discriminatory legislation would not only lead to the relegation of same-sex relationships to a form of second-tier status, but impair the rights of ‘tens of thousands of children now being raised by same-sex couples’ as well.  This is exactly the type of harm plaintiffs seek to remedy in this case.”

The court’s role in deciding a motion to dismiss is to decide whether the plaintiffs have asserted a plausible legal claim, assuming their factual allegations to be true.  “Construing the facts in the light most favorable to plaintiffs, and in view of the Supreme Court’s current statement of the law, this Court cannot say that plaintiffs’ claims for relief are without plausibility,” Friedman concluded as to the equal protection claim.  He commented that the plaintiffs’ due process claim “will likewise move forward because it states a plausible claim for relief,” citing Judge Vaughn Walker’s original Proposition 8 decision, which now stands as an unappealed district court opinion.

Friedman ordered that counsel meet with him on July 10 to set a trial date.  From the tone of his opinion, he is eager to decide this case on the merits, and seems well disposed towards the plaintiffs’ claims.

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