Testimony in the historic case of DeBoer v. Snyder begins this week in Federal Court in Detroit as opening statements are set to start at 9 a.m. Tuesday. The case involves a Hazel Park lesbian couple that is suing the state and Oakland County, for the right to jointly adopt their children and to marry.
Jay Kaplan, attorney for the ACLU of Michigan’s LGBT Project, spoke about the upcoming case in a conference call Feb. 20, putting it in context for community leaders and the media.
“What’s very unique about the Michigan case is this is only the second time in terms of any marriage litigation that there’s actually been a hearing where there will be examination of scientific studies and factual information to support these presumptions. Other than in California, with all these other Federal court decisions, the judges have just been relying on the documents they read, they’ve never taken testimony before. So this is a very significant case,” Kaplan said.
The prosecution and the defense are bringing in experts from across the country to testify about studies that look at issues of same-sex parenting, and the effects of allowing same-sex couples the right to marry. The prosecution will try to show that LGBT couples suffer harm and discrimination by being denied Equal Protection under the Constitution of the U.S., and they will try to show that same-sex parents are just as fit to raise children as heterosexual ones. The State will use experts who oppose same-sex parenting and adoption, who will try to prove the premise that those relationships are inferior and against the interest of the state.
“I think it’s one thing for a politician to make a statement in support of a discriminatory policy or to make a generalization about a group of people. It’s another thing when you have to go before the court and you have to swear under oath and be able to back up those assumptions and those rationales behind your policy,” Kaplan said.
In this case, even one of the defendants, Oakland County Clerk Lisa Brown, supports the couple’s right to marry and to adopt.
Kaplan said that he does “believe that there is going to be a favorable decision,” but also cautioned people that a win does not necessarily mean equal marriage will happen right away.
Other states, including Utah, Oklahoma, Virginia, Ohio and Kentucky, have had marriage cases win in Federal District Court recently, but they have had “stays” issued, meaning that the resulting law is put on hold until it can be heard by the Appeals Court, and possibly even the U.S. Supreme Court. It is unclear which case will ultimately make it to the U.S. Supreme Court, and it’s possible that the DeBoer case could be the one. Kaplan said there are at least four-dozen Federal and State cases involving marriage equality happening across the country.
“It’s very clear that Judge [Bernard] Friedman wants to make sure that when he issues his decision that it can be backed up with a very strong factual record,” Kaplan said. The testimony builds resiliency so that it will stand up to an appeal. He said that Michigan Attorney General Bill Schuette will most likely appeal, and that he will ask for a stay.
A stay would mean that same sex couples would not be able to marry until a higher court ruled. Some have speculated that if Judge Friedman decides in favor of the couple and does not issue a stay, there could be a window of a couple of hours up to a couple of weeks in which to secure a marriage license. Kaplan said this is unlikely, and potentially problematic.
“What we saw in Utah is couples…who were able to get married during this window period and now their marriages are in limbo. The State of Utah said they would not recognize these marriages, whereas the Federal Government said they would, and now there’s some litigation over the validity of these marriages,” he said.
The number of states with same sex marriage has grown from seven to 17 in the time since Jayne Rowse and April DeBoer began their case in 2012, Kaplan said. They filed even before the U.S. Supreme Court had made their decision in the Windsor case. “So much progress is happening, and happening so fast,” he stressed.
In Oregon, Virginia, Pennsylvania, California, Illinois, and Nevada State Attorneys have declined pursuing appeals to cases that decided in favor of same sex couples.
Kaplan added that even though the DeBoer case gives Michigan couples hope, others in the LGBT community continue to work on changes at the legislative level. The National ACLU’s “Out for Freedom” campaign is working with Republican office holders in several states to change their votes on access to marriage. Equality Michigan and other organizations are exploring the potential for a ballot initiative in 2016 to repeal Michigan’s Constitutional Amendment barring same sex marriage.
Those watching the DeBoer case can expect up to eight days of testimony, and then there will likely be a break of hours to days, or maybe even weeks, before Judge Friedman issues his decision.