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Federal Judge Schedules February 25 Trial on Constitutionality of Michigan Marriage Amendment

Posted on: October 16th, 2013 by Art Leonard No Comments

U.S. District Judge Bernard Friedman heard arguments on October 16 from the state of Michigan and lawyers for a lesbian couple who want to jointly adopt each other’s children, before announcing that he was denying each side’s motion for summary judgment and scheduling a February 25 trial on the constitutionality of the Michigan Marriage Amendment.  The Amendment’s constitutionality is an issue in the case because Michigan’s adoption statute only allows couples who are married to adopt jointly, and the Amendment prohibits same-sex marriages in the state.  The case is Deboer v. Snyder, Civil Action No. 12-cv-10285.

In a brief opinion released after the hearing, Judge Friedman explained that there was a factual dispute that would have to be resolved based on trial evidence before he could determine whether the Amendment is constitutional.  The dispute concerns the state’s argument that “providing children with ‘biologically connected’ role models of both genders that are necessary to foster healthy psychological development” justifies denying same-sex couples the right to marry.   Friedman quoted extensively from an affidavit by Dr. Jeanne Howard, Co-Director of the Center for Adoption at Illinois State University, which had been submitted by the plaintiffs in support for their motion for summary judgment.  Dr. Howard’s affidavit reviews studies showing that children raised by same-sex couples “show patterns of adjustment similar to those of heterosexual adoptive parents and their children,” and that other studies have shown “no differences for children in psychological adjustment, gender identification” as between those raised by same-sex couples and by different-sex couples.  “After reviewing the record, including Dr. Howard’s affidavit, the Court concludes that a genuine issue of material fact exists with respect to defendants’ gender role-modeling justification for the MMA,” wrote Friedman.

The state had offered three other justifications, but Friedman noted that all of them “have been rejected by other courts in recent years,” most significantly in the Supreme Court’s decision in Edie Windsor’s case on June 26, so this case will be a battle of expert witnesses about the psychological development of children raised by same-sex couples.  There are no reputable studies showing that children are disadvantaged psychologically from being raised by same-sex couples, apart from the notorious Regnerus study, whose methodology and interpretation have been severely challenged.  If the state calls Prof. Mark Regnerus as an expert witness, his cross-examination by plaintiffs’ counsel will provide a first opportunity to question him under oath about the sharply disputed circumstances under which the study was produced and the disputed conclusions about what it purports to show.

If this scheduled trial sounds like a replay of an old show, that’s because the Proposition 8 trial in California in 2010 was devoted almost exclusively to this issue, and so was the first-ever marriage equality trial, held in Hawaii in October 1996.  In both of those cases, testimony by the state’s witnesses ended up making the case for the plaintiffs, as they conceded under cross-examination that children have not been shown to be disadvantaged from being raised by same-sex parents, and that denying their parents the right to marry was actually disadvantaging the children materially and psychologically.  In both of those cases, the trial judges produced lengthy opinions with detailed findings of fact, rejecting the state’s argument that concern for the psychological welfare of children justified denying the right to marry to same-sex couples.

Judge Friedman announced that he would apply the “rational basis” approach to evaluating the constitutionality of the Amendment.  Because the 6th Circuit Court of Appeals, whose precedents bind the district court in Michigan, “does not consider gays or lesbians a suspect or quasi-suspect class” for purposes of constitutional analysis, Judge Friedman concluded that heightened or strict scrutiny does not apply to this case.  But he took note of the recent DOMA ruling from the 1st Circuit and the Supreme Court Windsor case, suggesting that something more than the highly deferential traditional rational basis test would apply, in light of the history of discrimination at the hands of the state government suffered by gay people.


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.