Michigan Gay Marriage Ban Challenge Gets February Trial

A challenge to Michigan’s same-sex marriage ban, brought by a lesbian couple seeking to adopt each other’s children, can only be decided after a trial, a federal judge ruled.

U.S. District Judge Bernard Friedman declined to rule on the basis of preliminary arguments today whether the ban violates the constitutional rights of gay couples. Friedman, who set a nonjury trial for Feb. 25, in July called the challengers’ claims plausible in the wake of a landmark U.S. Supreme Court ruling. He said he also wants to determine if there is a legitimate state interest in maintaining the gay marriage ban.

“The parties must be afforded the opportunity to develop their own record in this matter with the benefit of calling witnesses and subjecting them to cross-examination,” he said in an order issued after today’s hearing in federal court in Detroit.

The Michigan lawsuit was filed by April DeBoer and Jayne Rowse, both nurses, who initially sued last year to overturn a state law barring unmarried couples from adopting children. They later added the challenge to the gay marriage ban.

“The right is not to same-sex marriage,” Carole Stanyar, their lawyer, told the judge today. “It is the right to marriage.”

‘Optimal Parenting’

Republican Governor Rick Snyder, defending the laws, argued in court papers that the state has a legitimate interest in promoting “natural procreation,” “optimal parenting” and “family stability.”

On Sept. 27, a New Jersey state judge ruled that gay marriage must be allowed to afford same-sex couples equal protection under that state’s constitution. The decision, now under review by the state Supreme Court, made New Jersey the 14th U.S. state to legalize gay marriage.

Similar lawsuits are pending in Illinois, Pennsylvania and at least a dozen other states.

In Michigan, Friedman denied Snyder’s bid for dismissal in July, after saying in March that he would await the Supreme Court’s decision in a suit seeking to overturn part of the federal Defense of Marriage Act before ruling.

That decision, which struck down DoMA’s definition of marriage as between one man and one woman for federal purposes, came in June.

‘Without Plausibility’

“Construing the facts in the light most favorable to the plaintiffs and in view of the Supreme Court’s current statement of the law, this court cannot say plaintiffs’ claims for relief are without plausibility,” Friedman said in July.

The Michigan plaintiffs, who told the court they’ve been a couple for 12 years, have lived together for six and are joint homeowners.

DeBoer’s daughter was born and adopted in 2010. Rowse adopted two sons in 2009, the same year they were born.

Their initial complaint challenged only the state’s law prohibiting unmarried couples from adopting the other’s children.

In an October 2012 amendment they added a claim that Michigan’s state constitutional ban on same-sex marriage violates federal constitutional guarantees of equal protection and due process. They decided to challenge the marriage law at Friedman’s suggestion, Dana Nessel, a lawyer for DeBoer and Rowse, said in a phone interview.

In an Aug. 14 brief, the women challenged the objectives of the state’s law, noting that heterosexual couples can marry regardless of their desire to have children and that gay and heterosexual couples can have children without being married.

‘Actually Undermined’

“The state’s position that ‘responsible procreation and childrearing’ is advanced by two parents who are married to each other is, for this reason, actually undermined by the ban on same-sex marriage,” the women’s lawyers wrote.

The plaintiffs failed to demonstrate that their constitutional rights have been violated, Kristin Heyse, an attorney for the state, said at today’s hearing. The people of Michigan should determine the state’s laws, she said.

The state’s position “is not an attack on the gay/lesbian lifestyle,” she said. “The plaintiffs should be complimented” on how well they’ve raised their children, Heyse said.

Michigan’s citizenry through its legislature have repeatedly rejected attempts to change the state’s law on adoption, which has existed in some form since 1945, according to papers filed with the court by Attorney General Bill Schuette, who is also a named defendant in the lawsuit.

State Billls

The same-sex marriage ban was voted into Michigan’s constitution in 2004. Since then, two bills to recognize gay marriage have been introduced in the state’s legislature to no avail, according to the state’s papers.

“Michigan has never recognized a same-sex marriage, and the citizens of this state have repeatedly decided to reaffirm the traditional definition of marriage,” Schuette said in the filing.

Rowse and DeBoer live in Oakland County. Bill Bullard, the county clerk, initially was named as a defendant in the suit because the clerk’s office is responsible for issuing marriage licenses. In November, he was voted out in favor of Lisa Brown, who doesn’t oppose the women’s suit and has filed court papers stating she believes the state’s same-sex marriage ban violates the U.S. Constitution.

Lawyers for the state have asked Friedman to re-align Brown’s position in the case so that she is regarded as a plaintiff and not a defendant.

The case is DeBoer v. Snyder, 12-cv-10285, U.S. District Court, Eastern District of Michigan (Detroit).

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