DETROIT – Federal Judge Mark A. Goldsmith, of the Eastern District of Michigan, heard testimony on Aug. 21 from ACLU of Michigan Cooperating Attorney and University of Michigan Constitutional law professor, Julian Mortenson, representing eight same-sex couples fighting for the state to recognize their legal marriages
The lawsuit was filed in April after hundreds of same-sex couples were married during a brief window following the Deboer v Snyder case where Federal Judge Bernard A. Friedman ruled that the State’s same-sex marriage ban was unconstitutional. After a stay was issued, county clerk’s offices were barred from issuing any more marriage licenses, but more than 300 couples were at that time legally married under Michigan law. Eight couples sued the state directly following the stay.
Marsha Caspar (L) and Glenna DeJong (R), pictured in the headline photo outside the Theodore Levin Federal Courthouse, were the first couple married in Michigan on March 22. They spoke outside the courthouse before the hearing.
“We just want to be treated equally,” DeJong started. “I truly don’t understand people’s rabid resistance to treating each other equally and with respect. We waited 27 years to get married, not by choice, but by exclusion-we simply weren’t allowed to marry.”
Mortenson argued that the state cannot undo the legal marriages after they have taken place and that “acting properly under Michigan law, the marriages are protected under the constitution,” Mortenson said.
The issue of irreparable and constitutional harm was brought up many times by the prosecution. Examples of that harm include paternal rights of the parents, future harm such as medical coverage and gaps in the medical coverage that may affect any household children, absence or loss of a pension, the right to make personal decisions such as the “power of attorney” when discussing hospitalization rights, and the ongoing risk of the children being orphaned and placed under the care of the state.
Two of the eight couples have children. Under current Michigan law, both parents do not have paternal rights since, unlike heterosexual couples, both parents are prohibited from being listed as legal guardians of the child. Were death to take the partner who is guardian of the child, the other partner would then be a “legal stranger” and not permitted to assume guardianship without applying for adoption.
“This has day-by-day effects on the kids,” Mortenson said to the Judge, and that comes with emotional confusion, uncertainty and emotional insecurity for the children.
Michigan is treating these married couples differently than those legally married heterosexual couples who, by right of marriage are afforded full state benefits, protections and recognitions.
Frank Colasonti and his husband Jim Ryder were in the courtroom and are one of the eight couples the ACLU is representing. Rights of a partner include survivor benefits of a pension agreement. Were Ryder to pass, Colasonti would not have access to Ryder’s pension.
“We aren’t seeking damages, Your Honor,” Mortenson said. “We want an order to stop disrespecting these marriages and to validate their rights.”
“The claim is simple. The merits are clear. The harm is profound,” Mortensen said. “The state cannot mandatorily divorce you.”
State attorney Joshua Booth argued that the couples’ marriages would become invalid if higher courts, such as the 6th Circuit, overturn the decision made by Judge Friedman in March.
“If DeBoer gets reversed, it will be as if the DeBoer decision and the premise on which plaintiffs’ marriages took place, never existed,” Booth said. And argued that refraining from a decision would allow the higher courts to determine what the law should be.
“The marriage amendment was reanimated by the stay,” Booth said, continuing on to discuss how many other courts are staying their decision, awaiting the Supreme Court of the United States to clear up the matter.
Booth also argued that there wasn’t any harm currently being done to the plaintiffs because they were aware the court may issue a stay, as well as argued to consolidate the Caspar case with the Blankenship case, requesting that the state recognize out of state same-sex marriages, that was filed in June. Mortensen argued that the two cases were similar but different and that consolidation would not represent each case individually.
ACLU Attorney Jay Kaplan in a conference call after the hearings stated, “The DeBoer case and the Caspar case are very different. DeBoer was arguing for the right to marry,” Kaplan said. “Whereas Caspar is about the right to remain married.”
Caspar and DeJong both dressed in black pants and bold black and white shirts, have been awaiting this trial date since they filed in March.
“I think it was great, our attorney did a fantastic job and we are anxious about what is going to happen,” DeJong said in reflection of the case.
“I was glad today finally arrived, I was overwhelmed in the courtroom in listening to both sides-especially our side. I just hope this judge does the right thing and makes the right decision for equality,” Caspar said.
“He seemed to be very much engaged and understanding of what the different arguments were,” Kaplan said in regards to the Judge presiding over the case.
If Goldsmith does order full recognition without staying his own decision pending appeals, the state would ask a higher court to put that ruling on hold, said Joy Yearout, spokesperson for the state attorney general’s office.
The court is now in recess with no orders on the various motions given by Goldsmith.