"This Fight Is Not Over..."

U.S. District Judge Bernard Friedman

Judge Sets February Trial For Challenge To Michigan's Gay Marriage Ban

October 16, 2013
Tresa Baldas and Jim Schaefer

Michigan’s ban on same-sex marriage will remain in place for now after a federal judge opted not to rule on the issue today and instead hold a trial in February — a decision that dashed the hopes of dozens of couples waiting at local clerks’ offices with plans to wed that day if the ban was lifted.

“I wish I could sit here today and give you a definitive ruling,” U.S. District Judge Bernard Friedman said in a courtroom packed with nearly 100 gay rights supporters. “There are issues that have to be decided. ... I am in the middle. I have to decide this as a matter of law.”

It’s a decision weighing heavily on Friedman.

“I’m a little nervous,” Friedman admitted in court. “I’ve never had a case like this before.”

Michigan is one of 35 states that have gay marriage bans either through laws or constitutional amendments. Two Hazel Park nurses are challenging the state’s ban on same-sex marriage and same-sex adoption, arguing the bans unlawfully violate their right to get married and adopt each other’s children.

April DeBoer, 42, and Jayne Rowse, 48, filed a lawsuit in January 2012, initially raising only the adoption issue and later adding a challenge to the gay marriage prohibition. Rowse has two preschool-aged boys; DeBoer has a 3-year-old girl. They argue the state has no “rational basis” for denying them the right to get married and adopt children together.

Susan Horowitz of Farmington Hills, who came to court to support the plaintiffs, said she had hoped for a ruling today. But she believes change is coming for gays and lesbians who want to adopt children and get married in Michigan.

“I’m optimistic. I think the outcome is going to go well,” Horowitz said of the trial. “We just have to be a little more patient.”

Supporters of same-sex marriage rallied outside the courthouse before the hearing. And dozens of gay and lesbian couples waited for news at local clerks’ offices, hoping to immediately apply for a license and get married today.

Among them were Stephanie Kurtz and Emily Kimmel of Lansing. After the hearing, the women left the Ingham County courthouse with tears and disappointment — and without a marriage license.

“The best we can do is look forward to February and see if it’ll turn out like we want it to,” Kurtz said. “Each day, we have to fight for it.”

The state argues the voters of Michigan have already spoken on the issue, and a federal court should not be allowed to drown out their will. In 2004, state voters approved a constitutional amendment that defined marriage as “the union of one man and one woman.”

“The people of the state of Michigan should be allowed to decide Michigan law,” attorney Kristin Heyse of state Attorney General Bill Schuette’s office said in court today.

Heyse said the state’s position is not an attack on the gay and lesbian community and commended the plaintiffs for “doing a wonderful job raising their children.” But, she said, “There is no fundamental right to same-sex marriage or adoption.”

Heyse continued: “The ideal home environment is to have a mother and a father. ... The state is not saying that same-sex couples cannot raise children. They certainly can.” The question, Heyse said, is who gets to decide the state’s law, in this case involving domestic issues.

“At the end of the day, the people of Michigan should be allowed to decide ... not the federal courts,” she said.

Attorney Carole Stanyar, speaking for DeBoer and Rowse, said the Supreme Court has provided guidance for the court. She said the will of the people should not be disregarded, but precedent allows for scrutiny of laws that may be unconstitutional.

Stanyar, quoting from a case, said that if discrimination was allowed, children would be drinking from separate water fountains. The 14th Amendment would not tolerate those events, nor should they tolerate discrimination against gays and lesbians, she said.

“These marriage bans ... are hurting the most vulnerable members of our society,” Stanyar said.

Fight continues

The state has vowed a vigorous fight to uphold the voter-approved constitutional amendment and argues there are “legitimate state interests” in defining marriage as such.

“Michigan supports natural procreation and recognizes that children benefit from being raised by parents of each sex who can then serve as role models of the sexes both individually and together in matrimony,” the state has argued in court documents.

Michael Pitt, the attorney for Oakland County Clerk Lisa Brown, told the court today that her oath requires her to uphold the Constitution when issuing marriage licenses. Brown is a defendant in the case.

“The clerk knows, as we all do, that committed same-sex couples live together,” Pitt said.

As soon as the court grants her the power, Pitt said, Brown will issue licenses to same-sex couples.

Dana Nessel, one of four lawyers representing the plaintiffs, said she believes the gay and lesbian community in Michigan has suffered long enough from discrimination. She believes a ruling favoring her clients could trigger long overdue positive changes for gays and lesbians in Michigan, which she said has among the worst records for protecting the rights of gays and lesbians.

The national landscape

To date, 14 states have legalized gay marriage, according to ProCon.org, a nonprofit and nonpartisan group that researches controversial issues. Only one state, New Mexico, has no law legalizing or banning same-sex marriage.

In June, the U.S. Supreme Court issued two landmark same-sex marriage rulings: One directed the federal government to provide equal treatment to same-sex spouses, and the other allowed gay marriages in California to resume.

In a 5-4 ruling, the nation’s highest court struck down the 1996 Defense of Marriage Act, which denied federal benefits to gay couples married under state law. The court found that gay couples married in states where it’s legal must receive the same health, tax and other benefits offered to their heterosexual counterparts.

The high court rulings haven’t deterred Schuette from fighting to uphold the state’s constitutional amendment.

“The U.S. Supreme Court has ruled that states retain the constitutional authority to define marriage,” said Schuette spokesperson Joy Yearout. “We will continue to aggressively defend Michigan’s constitution in this case.”

Rally outside

Before today’s hearing, dozens of people gathered for a rally outside the federal courthouse to support gay marriage rights.

One lone protester stood across the street with a large red sign bearing religious messages opposing gay marriage.

“I’m glad God got me out of bed today. I’m the only voice for the Bible here,” said Christine Weik, 49, a married mother of two who drove two hours from Hopkins to Detroit to express her opposition to gay marriage. “It’s an abomination to the Lord and it breaks down the family core. Two men, two women — I’m sorry, you don’t get children out of that.”

When DeBoer and Rowse arrived, they were greeted by cheers.

“We’re hoping this is the beginning of the end for our journey,” DeBoer said. “We know we have a long fight, but we’re hoping that we get the start of an answer today.”

DeBoer noted the couple did not set out to be celebrities.

“We don’t see ourselves as poster women for anything. If anything, we’re poster women for our children and the rights of children like ours in Michigan,” DeBoer said.

After the hearing, Nessel said they look forward to the trial and have an overwhelming amount of evidence to show that same-sex parents are as good of parents as opposite-sex couples.

“We have faith that we will eventually prevail in this case,” she said.

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We were sadly disappointed yesterday, it was no loss, but only just a delay.  I understand Judge Friedman's trepidations and I know he understands the truth of the matter.  We will prevail, but until then we'll be reminded that, "justice delayed is justice denied..." We'll fight on.

"Fear Eats the Soul"