Senior U.S. District Judge Bernard A. Friedman ruled on March 21 that the Michigan Marriage Amendment and the statutes that implement it, which prohibit same-sex marriages in Michigan, violate the Equal Protection Clause of the 14th Amendment. Judge Friedman ordered the state to stop enforcing the ban. Friedman released his opinion shortly after business hours, so county clerk offices around the state were already closed for the weekend and marriage licenses could not be immediately issued. Attorney General Bill Schuette quickly filed an “emergency” petition for a stay of the ruling while the state prepared to appeal to the U.S. Court of Appeals for the 6th Circuit, which is already facing appeals of marriage recognition rulings from three other states: Ohio, Kentucky and Tennessee. The case is DeBoer v. Snyder, 2014 U.S. Dist. LEXIS 37274, 2014 WL 1100794 (March 21, 2014). Four county clerk offices especially opened on Saturday morning, March 22, to issue marriage licenses to same-sex couples, and 315 couples obtained licenses before the 6th Circuit issued an order temporarily staying the district court’s opinion until Wednesday, March 26. The 6th Circuit also requested the plaintiffs to respond to Schuette’s emergency petition by noon on Tuesday, March 25, thus giving itself a day to decide whether to stay the decision further until the appeal can be decided, a result that seemed likely given the Supreme Court’s stay of the Utah marriage decision under similar circumstances.
Judge Friedman’s ruling in DeBoer v. Snyder is the first federal marriage equality ruling since last spring’s Supreme Court decision in United States v. Windsor to be based on a trial record. Friedman had previously denied a motion for summary judgment filed by the plaintiffs, finding that because the rational basis standard for evaluating claims of sexual orientation discrimination is mandated by 6th Circuit precedent he should allow the parties to put on evidence on the question whether the marriage ban is rationally related to a legitimate governmental purpose. Friedman found that this standard was not met. In so doing, he emphatically rejected the expert testimony presented by the state, most particularly the testimony of University of Texas Professor Mark Regnerus, which Friedman characterized as “unbelievable.”
In support of a prior motion for summary judgment filed by the state and rejected by Friedman, the state had advanced four alleged “legitimate state interests” in support of its marriage ban: providing an optimal environment for child rearing; proceeding with caution before altering the traditional definition of marriage; upholding tradition and morality, and relying upon the argument that defining marriage is “within the exclusive purview of the state’s police power.” The trial was devoted almost entirely to the first of these, both sides presenting expert witnesses whose testimony was summarized and evaluated in Judge Friedman’s opinion.
Judge Friedman found believable and credible the testimony presented by the plaintiffs’ experts, psychologist David Brodzinsky, sociologist Michael Rosenfeld, law professor Vivek Sankaran, historian Nancy Cott, and demographer Gary Gates. These experts showed that same-sex couples are competent parents whose children experience outcomes essentially the same as those achieved by the children of married different-sex couples, that historically marriage licenses have not been withheld from couples who are unable or unwilling to procreate, marriage has not been denied to particular classes of prospective parents based on any evidence that they produce inferior outcomes for their children, and that thousands of same-sex couples in Michigan were raising thousands of children who were being disadvantaged by the denial of marriage to their parents. Friedman also heard evidence from one of the defendants, Oakland County Clerk Lisa Brown, who he noted in a footnote “has adopted plaintiffs’ legal position challenging the MMA.” Brown testified to the minimal requirements for obtaining a marriage license in Michigan, which do not include any proof of ability or intention to procreate and do not generally disqualify people because of characteristics — such as a criminal record — which might suggest problems about their ability to provide an appropriate home environment for children.
Next Judge Friedman turned to the state’s “experts.” One can put that word in quotation marks because Friedman rejected their testimony, finding it unbelievable and not credible.
Professor Regnerus was the lead expert witness for the state, basing his testimony on his 2012 paper, “New Family Structures Study” published in Social Science Research. Friedman summarized Regnerus’s testimony and the testimony criticizing his study by the plaintiffs’ experts, and concluded that Regnerus’s opinions should be totally rejected. “The Court finds Regnerus’s testimony entirely unbelievable and not worthy of serious consideration,” wrote Judge Friedman. “The evidence adduced at trial demonstrated that his 2012 ‘study’ was hastily concocted at the behest of a third-party funder, which found it ‘essential that the necessary data be gathered to settle the question in the forum of public debate about what kinds of family arrangement are best for society’ and which ‘was confident that the traditional understanding of marriage will be vindicated by this study.’ In the funder’s view, ‘the future of the institution of marriage at this moment is very uncertain’ and ‘proper research’ was needed to counter the many studies showing no differences in child outcomes. The funder also stated that ‘this is a project where time is of the essence.’ Time was of the essence at the time of the funder’s comments in April 2011, and when Dr. Regnerus published the NFSS in 2012, because decisions such as Perry v. Schwarzenegger and Windsor v. United States were threatening the funder’s concept of ‘the institution of marriage.’
“While Regnerus maintained that the funding source did not affect his impartiality as a researcher,” continued Friedman, “the Court finds this testimony unbelievable. The funder clearly wanted a certain result, and Regnerus obliged. Additionally, the NFSS is flawed on its face, as it purported to study ‘a large, random sample of American young adults (ages 18-39) who were raised in different types of family arrangements,’ but in fact it did not study this at all, as Regnerus equated being raised by a same-sex couple with having ever lived with a parent who had a ‘romantic relationship with someone of the same sex’ for any length of time. Whatever Regnerus may have found in this ‘study,’ he certainly cannot purport to have undertaken a scholarly research effort to compare the outcomes of children raised by same-sex couples with those of children raised by heterosexual couples. It is no wonder that the NFSS has been widely and severely criticized by other scholars, and that Regnerus’s own sociology department at the University of Texas has distanced itself from the NFSS in particular and Dr. Regnerus’s views in general and reaffirmed the aforementioned APA position statement.” The reference is to a statement by the American Psychological Association asserting that there is essentially no difference in outcome between children raised by comparable same-sex and different-sex couples.
Judge Friedman was similarly dismissive of the other “experts” offered as witnesses by the state, family studies Professor Loren Marks, economist Joseph Price and economist Douglas Allen. “The Court was unable to accord the testimony of Marks, Price and Allen any significant weight,” he wrote, finding their criticisms of the plaintiffs’ experts to be invalid. “They, along with Regnerus, clearly represent a fringe viewpoint that is rejected by the vast majority of their colleagues across a variety of social science fields. The most that can be said of these witness’s testimony is that the ‘no differences’ consensus has not been proven with scientific certainty, not that there is any credible evidence showing that children raised by same-sex couples fare worse than those raised by heterosexual couples.”
Turning to his legal analysis, he found that the trial testimony had disproved the “premise” that “heterosexual married couples provide the optimal environment for raising children.” He pointed out that “the optimal child-rearing justification for the MMA is belied by the state’s own marriage requirements” and that, “contrary to the state defendants’ contentions, the MMA actually fosters the potential for childhood destabilization” by placing parent-child relationships at risk if one parent in a couple dies or becomes incapacitated and the child is not legally related to the other parent. He pointed out, in a bit of amusing hyperbole, that were the state really interested in allowing marriages only for couples who would provide the “optimal” environnment as measured by such outcomes as academic and social achievements of children, “the empirical evidence at hand should require that only rich, educated, suburban-dwelling, married Asians may marry, to the exclusion of all other heterosexual couples,” and found “the absurdity of such a requirement” to be “self-evident.” “Optimal academic outcomes for children cannot logically dictate which groups may marry.”
Finally, on this point, he noted the basic irrelevance of this justification because the “optimal environment” for raising children “is simply not advanced by prohibiting same-sex couples from marrying.” In light of the demographic evidence, it was clear that “prohibiting gays and lesbians from marrying does not stop them from forming families and raising children. Nor does prohibiting same-sex marriage increase the number of heterosexual marriages or the number of children raised by heterosexual parents. There is, in short,” he concluded on this point, “no logical connection between banning same-sex marriage and providing children with an ‘optimal environment’ or ‘achieving ‘optimal outcomes.'”
Friedman quickly disposed of the other purported justifications for the ban, noting that “proceeding with caution” must give way when constitutional rights are at stake, that “tradition and morality” have been repeatedly rejected by federal courts as justifications for restricting constitutional rights, and that the state’s “federalism” argument had been effectively rejected by the Supreme Court in Loving v. Virginia (the opinion striking down Virginia’s criminal ban on interracial marriages) and U.S. v. Windsor. “Taken together,” he wrote, “both the Windsor and Loving decisions stand for the proposition that, without some overriding legislative interest, the state cannot use its domestic relations authority to legislate families out of existence. Having failed to establish such an interest in the context of same-sex marriage, the MMA must not stand.” He also rejected the state’s argument that the MMA had some kind of special legal status because it was enacted by the voters. “The Court is not aware of any legal authority that entitles a ballot-approved measure to special deference in the event it raises a constitutional question.”
Federal judges have over the past few months proved to be unusually eloquent as they conclude their same-sex marriage opinions, and Judge Friedman is no exception. “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. No court record of this proceeding could ever fully convey the personal sacrifice 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. It is the Court’s fervent hope that these children will grow up ‘to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives,'” he continued, quoting from the Supreme Court’s opinion in U.S. v. Windsor. “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.”
Judge Friedman will undoubtedly be criticized by some as a “judicial activist” and a radical liberal. Suffice to point out that he was appointed to the court by President Ronald Reagan in 1988, during an administration that reportedly had a strict conservative litmus test for judicial appointees. He is a veteran of more than a quarter century on the court, and served as its chief judge for several years, having taken senior status a few years ago. Some of the judges who have rendered marriage equality rulings in recent months have been recent appointees of President Obama, but Judge Friedman, like Judge Shelby from Utah, is an appointee of a Republican president with lengthy judicial experience.