October 16, 2013 | by Chris Johnson
Judge sets Feb. 25 trial for Michigan marriage ban
April DeBoer, Jayne Rowse, Michigan, gay news, Washington Blade, marriage equality, same-sex marriage, gay marriage

April DeBoer (on left) and Jayne Rowse speak at a rally before the Michigan court hearing on marriage equality (Washington Blade photo by Chris Johnson).

DETROIT — A federal judge on Wednesday dashed the hopes of those seeking a quick ruling in favor of marriage equality in Michigan when he instead announced he would bring the case to trial beginning Feb. 25.

Following 60 minutes of oral arguments, U.S. District Judge Bernard Friedman declared he would hold an “expedited” trial where experts could testify on whether the state has a legitimate interest to ban same-sex marriage, denying requests from both sides to grant summary judgment. The judge granted attorneys 30 days to prepare a witness list for the trial.

“What is in dispute… is whether or not there’s a legitimate state interest, and that’s a battle of the experts,” Friedman said.

The case before the court, DeBoer v. Snyder, was filed last year by April DeBoer and Jayne Rowse, a lesbian couple in Hazel Park, Mich. They initially filed their complaint to seek second-parent adoption rights for their three children, but later amended their complaint to ask the court to overturn the constitutional ban on same-sex marriage approved by voters in 2004.

Friedman announced his decision to bring the case to trial after hearing arguments both for and against lifting the marriage ban from attorneys in oral arguments. Both sides drew on the U.S. Supreme Court decision against the Defense of Marriage Act in making their case on the constitutionality of the ban on same-sex marriage. It was the first oral arguments on marriage in federal court since the Supreme Court decisions in June.

Attorney general argues on behalf of marriage ban

Representing the state during oral arguments was Assistant Attorney General Kristin Heyse, who argued the court should deny the requests of plaintiffs in the case on the basis that Michigan’s ability to make its own decisions on domestic relations is “indisputable” following the DOMA decision.

“The relief that they request in this particular case, your honor, would require this court to usurp the same sovereign authority that governs domestic relations,” Heyse said. “This the court should decline to do.”

Carole Stanyar, one of four private attorneys representing plaintiffs in the lawsuit, made use of the DOMA decision the other way during arguments by pointing the language in the decision pertaining to children, saying the children of her clients are being harmed under state law.

“I absolutely believe, your honor, that the five justices that decided on that language were looking past that case to pass the language in Windsor to our plaintiffs, our littlest plaintiffs, to these children, to the children of gay and lesbian parents all across Michigan and all across America,” Stanyar said.

Stanyar also maintained Heyse’s interpretation of the DOMA decision is incorrect because although the Supreme Court said domestic relationships are up to the states, they can’t act in a way that’s unconstitutional with regard to the people involved.

Other cases also came into play.

Heyse maintained that Baker v. Nelson, a case seeking same-sex marriage that the Supreme Court refused to hear in 1972, provided the controlling precedent in the case. At this point, Friedman interrupted her, saying ”That’s about a 40 year old case! What about Lawrence?”

But Heyse maintained the issue of homosexual relations is different than the issue of marriage, which she said is still controlled by Baker. 

Further, she pointed to two other recent district court decisions in Nevada and Hawaii that upheld bans on same-sex marriage as a result of the Baker decision. However, both decisions were rendered before the Supreme Court decisions in expanding marriage equality this June.

Urging the court to avoid ruling in favor of plaintiffs by applying a heightened scrutiny to Michigan’s law and marriage and adoption, Heyse said, “There is no fundamental right to same-sex marriage or adoption.”

Prefacing her arguments by saying they weren’t an attack on the gay people, Heyse said the electorate had a legitimate interest in approving a ban on same-sex marriage and proper venue for making a decision on both the marriage and adoption issue is through the legislative process, not the courts.

“The people of the state of Michigan should be allowed to decide when and if there should be a change in the law,” Heyse said. “In 2004, nearly 2.7 million voters chose to reaffirm traditional definition of marriage, which remains between one man and one woman. That was not a vote against the gay and lesbian community, but a vote to maintain the traditional definition.”

At one point during the arguments, Stanyar and Friedman had an exchange when the attorney said the court should rule for her client because social science indisputably says gay parents are just as fit to be parents as heterosexuals.

Friedman responded her couldn’t make a ruling on any one piece of social science alone because there may be other opinions, but Stanyar held firm, saying the state provided no affidavit to the contrary.

“At this stage in history, it is no longer debatable,” Stanyar said. “These things have been proven. They’ve been proven over and over and over again. They chose to proceed on summary judgment. They haven’t offered you any affidavit.”

Also urging the court to overturn the ban on same-sex marriage was Michael Pitt, an attorney representing Oakland County Clerk Lisa Brown.

Pitt maintained Brown, who filed her own a petition before the court in favor of overturning the marriage ban, would not “delay even one minute” to give marriage licenses to gay couples if the court allowed her to do so.

“The clerk knows, as we all do, that committed same-sex couples live together as a family, sometimes for decades, raise children together, provide financial stability for each other, help each other in time of illness, help each others’ family members and, at the end of life, they are there to provide comfort and say goodbye,” Pitt said. “These relationships define our personal autonomy, our liberties, and no law has ever trampled on these personal choices.”

Pro-gay lawyers see opportunity in trial

The judge’s decision to bring the case to trial is along the lines of what happened in the federal lawsuit that overturned California’s Proposition 8. When the case came before U.S. District Judge Vaughn Walker in 2010, he ordered that a trial would be held before issuing ruling against the referendum against same-sex marriage.

Dana Nessel, another attorney representing the plaintiff couple, said on the steps of the court after the arguments she’s disappointed in the delay, but will prepare witnesses as requested by the judge.

“Naturally, there’s some mild disappointment there,” Nessel said. “But we look forward to a trial and we look forward to the opportunity to present our experts in the case. Honestly, we have an overwhelming amount of evidence to present to the court to show that same-sex parents are every bit as good as opposite-sex parents. We know that to be the truth.”

Jay Kaplan, a staff attorney for the ACLU of Michigan, was present in the courtroom during the oral arguments and later told the Washington Blade the delay in a decision is “disappointing,” but a trial would be beneficial in the pursuit of marriage equality because the opposing side won’t be able to produce witnesses.

“I think what the judge is basically saying is he wants to make sure that whatever decision he renders can be backed up with strong facts, testimony and expertise,” Kaplan said. “When you look at the California case…proponents of marriage equality couldn’t find those people to back up those assertions. I think the same thing will happen in the State of Michigan. They’re not going to be able to find reputable studies with experts who can support denying gay couples the right to marry.”

Oakland County Clerk Lisa Brown was also present near the court after the hearing, saying she knows of gay couples are disappointed because they called her office asking if they could obtain marriage licenses there if the court ruled for marriage equality.

“Those rights are being violated, I think, and it’s very disappointing,” Brown said.

Asked by the Washington Blade if she would help with preparing with witness lists for the trial, Brown said she’s still surprised that Friedman made the decision take the case there.

“I think we’re all still kind of surprised that this is what the judge decided today,” Brown said. “He could have done this in the summer when we had a hearing. In all the scenarios that we imagined that would happen today, this was not one of them.”

Heyse had no comment in response to the Blade’s questions following the oral arguments and directed inquiries to the attorney general’s office. It didn’t respond to requests for comment.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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