April DeBoer, right, with her partner, Jayne Rowse. They are challenging Michigan’s
ban on same-sex marriage. Credit Paul Sancya/Associated Press
January 24, 2015
HAZEL PARK, Mich. — On a snowy night in 2011, April DeBoer, Jayne Rowse and their three children were driving in their minivan down a rural road when a truck, attempting to pass another vehicle, came barreling toward them.
“At the last second, he swerved off the road and veered into a field,” Ms. DeBoer recalled. “I don’t think Jayne and I would have survived the impact. It was that moment, that realization, that we needed to get things in order.”
They figured they could draw up wills and assign custody of their children during a quick meeting with a lawyer. Instead, they are headed to the United States Supreme Court.
After talking to a lawyer in Detroit, Ms. Rowse and Ms. DeBoer were stunned to discover that, as a gay couple living in Michigan, they were unprotected under the law: Michigan does not allow two unmarried people to jointly adopt a child, so their children were technically adopted by a single parent, either Ms. Rowse, 50, or Ms. DeBoer, 43. Each parent legally had no claim to the children her partner had legally adopted.
If either parent died, they realized, the survivor would not just face the devastation of losing a loved one. A judge could easily order any child adopted by a deceased parent to live with a distant relative or in foster care. The survivor would face the disintegration of the couple’s family.
“It was scary,” Ms. DeBoer said. “All along we thought we could protect our children, and we couldn’t.”
On Jan. 16, the Supreme Court agreed to hear their federal lawsuit challenging Michigan’s ban on same-sex marriage, as well as cases brought by couples in Ohio, Tennessee and Kentucky. The court is expected to decide by June whether all 50 states must allow gays and lesbians to marry.
Its ruling will come on the heels of Supreme Court victories for supporters of same-sex marriage. Last fall, the court let stand appeals court rulings that allowed same-sex unions in five states, and in 2013, a landmark decision on same-sex marriage, United States v. Windsor, struck down a section of the Defense of Marriage Act that banned federal benefits for same-sex couples who were married in states that allowed the unions.
Days after they received word that the Supreme Court would hear their case, they were still marveling at the twists and turns that had gotten them there.
The couple met in 1999 through mutual friends. Ms. DeBoer had just endured a bruising divorce — asked how many years she was married, she said, “Too many years” — and had not come out to her family and friends. Ms. Rowse and Ms. DeBoer began attending nursing school around the same time, encouraging each other through the grueling work, and dating off and on.
After they finally became a couple, they celebrated their union in 2008 with a commitment ceremony attended by some 30 relatives and friends. And they tentatively spoke of their wishes to be parents. “We talked more about starting a family and having kids,” Ms. DeBoer said, “with the possibility of maybe someday we’d be able to get married.”
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They first tried to conceive naturally, with the help of a sperm donor, and it worked: Ms. DeBoer became pregnant with triplets. But joy turned to despair when she had a miscarriage, losing all three babies in the first trimester.
After that, they moved to adoption. “It was too much,” Ms. DeBoer said. “I couldn’t go through the physical or emotional stuff again.”
They have adopted four children. On paper, Ms. Rowse adopted Nolan, 6, and Jacob, 5; Rylee, 2, and Ryanne, 4, legally belong to Ms. DeBoer. Two of the children have developmental disabilities and require special care.
One morning last week, their sunny living room was packed with the furniture of family life. A portable crib was set up near the fireplace, picture books were scattered on the floor and a dog snoozed in the corner.
Until a few years ago, the couple were too busy managing their lives and their children to get too involved in the debate in the United States over gay rights.
“We belonged to one gay and lesbian parent group,” Ms. Rowse said as Rylee wriggled onto her lap. “That’s it.”
Their close call with the truck that day in 2011 led them to a lawyer, Dana Nessel, who advised them that she could draw up guardianship papers, but that they would be nearly worthless legally. She urged them instead to file a federal lawsuit challenging the adoption law in Michigan. When Ms. Nessel, a co-counsel for the family, went to gay rights groups asking for their support, they all declined, telling her that she would lose the case.
“None of the organizations were interested in doing challenges of this sort,” Ms. Nessel said. “But I thought their story was so compelling. And I thought the adoption code was appalling and needed to be rectified.”
Undeterred, they filed a lawsuit and went before a United States District Court judge, Bernard A. Friedman, a Reagan nominee who in 2001 had ruled that the University of Michigan Law School’s affirmative action policies were unconstitutional.
In Judge Friedman’s courtroom that day in 2012, he suggested that Ms. DeBoer and Ms. Rowse radically change course. Amend your claim to take on Michigan’s law banning same-sex marriage, he said, referring to the measure that voters approved in 2004.
“We felt the judge’s implication was clear — either amend the proceedings to challenge the marriage ban, or the entire case could be dismissed,” Ms. Nessel said, recalling her shock. “April and Jayne, as much as they wanted to get married and adopt their kids, never set out to challenge the marriage ban.”
After a two-week trial last March, Judge Friedman ruled in their favor, setting off a brief window of time when more than 300 gay and lesbian couples were married in Michigan.
Ms. Rowse and Ms. DeBoer were not among them. They wanted to wait until the law was perfectly clear and every same-sex couple in Michigan had the right to be married. (The United States Court of Appeals for the Sixth Circuit overturned Judge Friedman’s ruling in November, halting same-sex marriages in Michigan and three other states.)
Lawyers for the state are expected to argue that decisions on same-sex marriages are best left to the popular vote and that children benefit from having parents in heterosexual relationships. But if the Supreme Court rules in Ms. Rowse and Ms. DeBoer’s favor, their wedding day may come soon.
They are nervously awaiting their trip to Washington — their first visit to the nation’s capital.
“I think that’s just going to be overwhelming, seeing the justices,” Ms. Rowse said. “We’re optimistic and hopeful that they’re going to be on the right side of history.”
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We are encouraged that the Michigan case is one that the Supreme Court will decide so that the way will be clear for us to adopt our children jointly as well.
My husband and I fought hard to overcome prejudices in the foster care licensing process in order to be licensed jointly like any other married couple... And now we're excited to think that perhaps by June, we can start to plan the adoption of our two boys. Although they've only been with us for about a month now, they've already stolen our hearts and we're sure that we are going to be a forever family.
"Fear Eats the Soul"
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