By Attorney Rudy Serra
The fight for LGBT equality in Michigan is significantly advanced by Judge Friedman's decision in DeBoer v Snyder. The judge made detailed findings of fact about the studies used by both sides regarding children raised by same sex couples. He concluded that the best interest of children is served by allowing same sex couples to marry.
Michigan is the 18th state to overturn anti-gay marriage laws. Court after court has recognized and honored the same constitutional values. In case after case, conservative state officials have been unable to identify or prove even one rational basis for these anti-gay laws.
The court's decision to enjoin the state from enforcing the same sex marriage ban and not to delay implementation of the order while it is appealed is important. It shows that Judge Friedman has high confidence that his decision will stand on appeal. Since he followed clear precedent and gave both sides ample opportunity to prove facts, marriage equality in Michigan is probably here to stay.
This tremendous victory does not mean that the struggle has ended. Michigan still has obsolete anti-gay laws like the "abominable and detestable crime against nature" and "gross indecency" laws that must be repealed. The latter provides for a prison sentence to punish oral sex in private. Every married couple in Michigan should be outraged at the implications, yet courts still enforce these forensic fossils. Jury instructions still exist for each, and people have been sent to prison under these draconian enactments even after Lawrence v Texas found similar laws in other states to be unconstitutional.
Michigan law will now have to adapt to new realities in custody and support guidelines and new challenges in schools, businesses and other groups. Evidentiary doctrines such as the "spousal privilege" and property laws that control the disposition of estates are all affected. The most important law, the Elliott-Larsen Civil Rights Act, still requires the additional language of "sexual orientation and gender identity."
All of these changes will take time. Experienced leadership will be needed to make sure that the time is as short as possible. Justice cannot be kept waiting by tantrums or by apathy.
Gov. Snyder should disavow Attorney General Bill Schuette's attempt to delay enforcement of the decision and should direct the Attorney General to drop any appeal. If the Attorney General refuses, the Governor can and should retain independent outside counsel to represent his office on behalf of the 2,650 same sex couples in Michigan already raising 5,300 children. As a long-time LGBT rights and family law attorney, I would volunteer to provide legal services to fight in favor of marriage equality at no cost to the tax payers. If I were in the legislature, I would lead the fight to amend Elliott-Larsen, protect marriage equality and assure that archaic anti-gay criminal laws are changed.
