Michigan Marriage Ban Struck Down

April DeBoer and Jayne Rowse outside the courthouse last week. A federal judge has struck down Michigans ban on gay marriage Friday the latest in a series of decisions overturning similar laws across the U.S. The two nurses whove been partners for eight years claimed the ban violated their rights under the U.S. Constitution. Photo: Andrew Potter

"In attempting to define this case as a challenge to the 'will of the people,' state defendants lost sight of what this case is truly about: people."
DETROIT – U.S. District Judge Bernard Friedman's ruling was unequivocal. In the strongest possible terms, he struck down Michigan's marriage ban as unconstitutional just before 5 p.m. on March 21, writing that the state's objections to marriage equality did not reach even the bare minimum legal threshold – they weren't even rational. The opinion repudiated each of the state's key witnesses, describing some of them as "entirely unbelievable and not worthy of serious consideration," and described all the plaintiffs' witnesses as "highly credible."
At a quickly assembled press conference at Affirmations Community Center Friday evening, over 100 people cheered, wept and screamed upon the arrival of the plaintiffs, Jayne Rowse and April DeBoer, and their attorneys Dana Nessell, Carol Stanyar and Ken Mogill.
"Obviously this is a pretty historic and monumental day in Michigan, and in our lives, and probably in the lives of most of the people gathered here," said Jayne Rowse. In thanking their attorneys April DeBoer said, "We were the ones who stood up and said we aren't going to take it anymore, but they are the ones that did all the hard work."
As lawyers and activists pored over the decision there was elation – then an incredulous question. No stay? Is that possible? All the legal experts had assumed a stay would be included in the decision. But Judge Friedman did not include a stay, making marriage equality the law in Michigan effective immediately.
Within a half hour of the decision's release, Michigan's Attorney General Bill Schuette submitted a motion requesting an emergency stay. But until a higher court responded to their motion, marriage was legal.
Journalists, activists and political leaders quickly reached out to county clerks, asking when they would open to begin issuing marriage licenses. For several hours, all clerks asked said it would be Monday morning – usual business hours – because they couldn't open any earlier.
Then at around 9 p.m. Washtenaw County Clerk Lawrence Kestenbaum announced he would open at 9 a.m. Saturday, March 22 and marry as many couples as he could until 1 p.m. Just before 11 p.m. Oakland County Clerk Lisa Brown announced she would open Saturday morning too, as did Ingham County Clerk Barb Byrum and Muskegon County Clerk Nancy Waters.
The rush to marry was on.
Despite the short notice, by 7:30 a.m. the next morning dozens of people were already in line at the four county clerks' offices. At the Oakland County courthouse in Pontiac, over 50 people waited for the clerk's office to open. That number grew quickly to over 500 people by mid-morning. Couples came with friends, families and children to marry in the window of opportunity created by Judge Friedman's decision. The mood was gleeful, excited, emotional, loving and appreciative to Brown and her staff who came in on their day off to solemnize 147 couples' legal Michigan marriages.
Clergy and other officiants rushed to the courthouse to perform marriage ceremonies. Metropolitan Community Church pastors Rev. Deb Dysert and Roland Stringfellow performed about 30 ceremonies in and around the halls of the courthouse. County Clerk Lisa Brown, who not only issues the marriage licenses, but is also empowered to marry couples, finally gave up trying to perform ceremonies one-at-a-time and instead started marrying people in groups of about 25 couples each.
Similar scenes played out at the Washtenaw, Ingham and Muskegon clerks' offices. By the end of the day, those four county clerks had married 315 couples.
Then, late in the day, the Sixth Circuit Court of Appeals in Cincinnati granted Schuette a temporary stay of Judge Friedman's decision until March 26, pending review of Schuette's request for a more permanent stay that would presumably last until the case goes through the full appeals process.
Although it shut the door on marriages for now, the 315 marriages performed March 22 remain legal marriages in the State of Michigan. Gov. Snyder's spokesperson, Sara Wurfel, announced Monday that Snyder and his administration consider everything to be on hold for now, including the marriages performed Saturday. "We are not saying that we aren't or won't recognize the marriages that happened on Saturday, but that we're awaiting further court or legal direction on this complex, unusual situation," Wurfel said in an email. "Either way, this can't be construed one way or another as not recognizing the validity of the same-sex marriages."

The Decision

Judge Friedman's 31-page decision goes through all four of the state's objections to marriage equality. Friedman then explains why each objection has no merit.
The state's four reasons for excluding same-sex couples from Michigan's definition of marriage are:
1. Optimal Environment, or providing children with "biologically connected" role models of both genders that are necessary to foster healthy psychological development;
2. Proceeding With Caution, or avoiding the unintended consequences that might result from redefining marriage;
3. Tradition and Morality; and
4. Federalism, or promoting the transition of "naturally procreative relationships into stable unions."

Optimal Environment
Friedman rejected the optimal environment argument because the evidence presented at trial disproves that theory. Friedman cited testimony from psychologist David Brodzinsky and sociologist Michael Rosenfeld as evidence that children raised by same-sex couples progress at almost the same rate through school as children raised by heterosexual married couples. He described the state's response as unconvincing and not believable, citing a "small number of outlier studies in support of the optional child-rearing rationale." He also wrote that the "state's justification for the Michigan Marriage Amendment is belied by the state's own marriage requirements" which do not include a couple's ability to have children, or to raise them in any particular family structure, or to achieve certain outcomes for children.
Friedman threw the state's arguments back, writing the MMA actually fosters the potential for childhood destabilization in same-sex families, because if the legal parent dies, the surviving non-legal parent has no rights or responsibilities on behalf of the surviving children "without resorting to a prolonged and complicated guardianship proceeding."
Also, Friedman wrote, "the state's defendants' position suffers from a glaring inconsistency. Even assuming that children raised by same-sex couples fare worse than children raised by heterosexual married couples, the state fails to explain why Michigan law does not similarly exclude certain classes of heterosexual couples from marrying whose children persistently have had sub-optimal developmental outcomes." He cited Oakland County Clerk Lisa Brown, who'd testified that, for example, she cannot deny a marriage license to a person with a felony record, a convicted pedophile, someone who has children already that have progressed poorly, or to a couple who cannot or have no intention of having children.
Finally, Friedman wrote that prohibiting gays and lesbians from marrying does not stop them from forming families and raising children. "There is, in short, no logical connection between banning same-sex marriage and providing children with an 'optimal environment' or achieving 'optimal outcomes,'" he wrote.

Proceeding With Caution
Friedman wrote that the wait-and-see justification for MMA is not persuasive, finding that any deprivation of constitutional rights calls for prompt rectification. "The state may not shield itself with the 'wait-and-see' approach and sit idly while social science research takes its plodding and deliberative course," he wrote. "The state must have some rationale beyond merely asserting there is not conclusive evidence to decide an issue one way or the other.. the 'wait-and-see' approach fails to meet this most basic threshold."

Tradition and Morality
Friedman saved one of his most eloquent remarks for his decision to reject the Tradition and Morality argument:
"Many Michigan residents have religious convictions whose principles govern the conduct of their daily lives and inform their own viewpoints about marriage. Nonetheless, these views cannot strip other citizens of the guarantees of equal protection under the law. The same Constitution that protects the free exercise of one's faith in deciding whether to solemnize certain marriages rather than others, is the same Constitution that prevents the state from either mandating adherence to an established religion, or enforcing private moral or religious beliefs without an accompanying secular purpose."

The state tried to argue that the authority to define marriage falls within the exclusive powers of the individual states. But Friedman wrote that the state's domestic relations authority can not trump federal constitutional limitations. Friedman cited the 1967 Loving v. Virginia federal case that overturned that state's ban on interracial marriages as precedent.
The state also tried unsuccessfully to argue that if the court overturned the marriage ban it would be going against the will of the people, 2.7 million of which voted for the constitutional amendment to ban marriage equality in 2004. Friedman dismissed that argument and wrote that the popular origin of the MMA does not insulate it from constitutional scrutiny. Friedman wrote, "In attempting to define this case as a challenge to the 'will of the people,' state defendants lost sight of what this case is truly about: people."