DETROIT – On the eve of the April DeBoer-Jayne Rowse wedding which he officiated, Federal Judge Bernard Friedman sat down with BTL to discuss his historic role on the path to marriage equality in the U.S.
Friedman was the deciding judge in the 2014 DeBoer v. Snyder trial that took an in-depth look at the legalities of same-sex marriage and whether the 2004 voter-approved Michigan Marriage Amendment (MMA) was unconstitutional. Friedman presided over nine days of testimony from national statisticians, psychologists, sociologists, law professors, historians, county clerks and economists and ultimately ruled in favor of the plaintiffs.
The state had argued that the MMA provided an optimal environment for child-rearing and upheld “tradition” and “morality” in the establishment of marriage, cautioning against altering the traditional definition of marriage as between “one man and one woman.”
But for DeBoer and Rowse, the heart of the issue was less about definitions and more about the lack of legal protections partnered LGBT parents are provided under Michigan law. The couple sought to co-adopt their (now) four children, but because the MMA defined marriage as between “one man and one woman,” they were prevented from filing for second-parent adoption. The adoption prohibition left each of them a “legal stranger” to the other’s children.
DeBoer and Rowse sought relief from the court from the beginning of 2012 through 2013. Friedman knew that the only course of action open to the couple was pursuing a challenge to the constitutionality of the MMA. He had no legal path when it came to ruling on state adoption law. Friedman wrestled with whether or not to recommend a trial or simply dismiss the case, knowing how under resourced the plaintiffs attorneys where and what a burden a trial would be. In the end, though both the plaintiffs and state requested summary judgment, he moved to hold a trial, only the third in the history of the marriage equality movement.
Friedman told BTL he had no idea in advance of the trial what the evidence might look like for either party. In the end his decision slammed the state’s witnesses, describing the testimony as “entirely unbelievable and not worthy of serious consideration” in discredited sociologist Mark Regnerus case, and the other state’s witnesses as being “unable to accord testimony of Marks, Price and Allen any significant weight.”
On March 21, 2014 Friedman wrote what LGBT citizens long waited to read: “After reviewing the evidence presented at the trial, including the testimony of various expert witnesses, the exhibits, and stipulations, and after considering all of the legal issues involved, the Court concludes that the MMA is unconstitutional and will enjoin its enforcement.”
Over the next six months federal courts across the country ruled in favor of marriage equality until Nov. 6, 2014 when the 6th Circuit Court of Appeals broke the cycle, overturning Friedman’s decision which created a circuit court split. A few months later the U.S. Supreme Court heard oral arguments regarding the constitutionality of same-sex marriage bans, and on June 26 SCOTUS ruled that bans on same-sex marriage were, in fact, unconstitutional.
Some experts postulate that if it were not for Friedman’s decision, the path toward marriage equality would not have been as swift.
While humbly claiming only to be doing his job, with no eye necessarily to a future SCOTUS ruling, Friedman’s decision to hold a trial provided extensive testimony from experts that would not have been available had he declared summary judgment in the case in October 2013. Establishing precedent became establishing a path to history for LGBT equality.
What was the journey for you personally in accepting gay people?
I grew up in a family where everybody was equal. My dad was a very liberal Democrat. I grew up in a family where we were Jewish. My dad was very much aware everybody had to be treated equally. He treated everybody that way. He was a physician. He had a practice that had a very large, minority African-American, black patient load. And he was discriminated against himself because of a couple things. One, as you know in those days, Jewish doctors had to go to Jewish hospitals – that is why Sinai Hospital was formed – or they had to go to small little hospitals. Two, he got discriminated against because he had black patients. I grew up in a family where injustices just weren’t tolerated and everybody was equal. So he did a lot of things in his life to get rid of (inequality) and that’s how he taught us. That’s how I grew up. So in terms of the issue of being gay or black or anything, it just wasn’t an issue for me, ever, in my life.
I was certainly not exposed to the gay community. I didn’t know the difference. Very frankly, in those days nobody came out so you wouldn’t know if they were gay or not gay, but certainly it wouldn’t have made any difference. And I guess my first real exposure to the gay community was through (Judge) Judy Levy. Judy applied for a position and I knew she was gay. That was my first experience and we went through a lot. She had all her babies when she was working with me, and we’ve been friends ever since.
People understand it and they talk about it now. I think the most important thing is people are now more aware of it. It’s no longer coming out of the closet, instead it’s, “Hey, we’re all equal.” That’s our lifestyle, you have your lifestyle. It’s not (totally) that way yet, but hopefully that’s the trajectory.
Why was it important to have a trial? A lot of people wondered why you didn’t just issue summary judgment.
I thought (the trial) was very important. It started off on the adoption part of it. And then I realized that I couldn’t decide what they wanted me to decide on the adoption request, because the adoption itself was not unconstitutional. It was very clear that it was about marriage. But marriage was defined somewhere else. I knew that I had one of two choices. I agonized for a long time, you know, “What should I do?” The easiest thing was to dismiss the case. My law clerks and I talked about it. It was a no brainer dismissing it, because they didn’t have a case because they didn’t challenge marriage. It wasn’t unconstitutional. I agonized, do I just dismiss the case because I knew that their issue was not really marriage – their issue was their children. And they’re totally committed to that.
So very frankly I didn’t know what to do until the last minute. I talked with my law clerks and I said, “The only fair thing to do is to tell them exactly what is going on.” And that’s what I did. I said, “You have to challenge marriage or you are going to lose.” And that’s why I gave them time. I had never seen that expression on somebody’s face, because I knew that is not what they went into it for. They went into it, they’re in love with each other, they already had a nice relationship and they already have nice jobs. They went into it, and I knew it, because of the issue with the children and what will they do if something happens to one of them. I looked at the expression on their face, and I knew that wasn’t what they had bargained for.
What came out during the trial that was important?
I thought a trial was important for me because I had to rule on marriage. The state took a position, which I now understand, that, one, it was a state issue and not a federal issue. They also took the position that only they can define marriage and that the way they defined it was perfectly legal and, the thing that got to me was that by defining it any other way, it was not in the best interests of the children. And that this was an adoption case as the plaintiffs saw it. (Attorney) Carole (Stanyar) always, until we finally got into the case, it was always an adoption case for the plaintiffs. I don’t think it was ever a marriage case for the plaintiffs. All their pleadings and everything else, it was always, “My children, my children, we’re protecting our children.” And the state then kind of bit on that. I say bit, because they then made it the issue of the health of the children and they lost terribly at the trial. There wasn’t any evidence that (the state) brought forward that would substantiate their position. I said it in my opinion and the record is very clear. The state was forced into that issue by Carole and her team because that was the (state’s) issue, but they couldn’t substantiate it, there was no way to substantiate it.
And that is why I thought (let’s) have a trial. I didn’t know they couldn’t substantiate it at the time. I knew nothing about the statistics or what any of those witnesses were going to say because there was no other trial. No other trial had taken place so I had nothing to go by. I had no idea how they were going to prove their cases. None whatsoever. So it unfolded for you, if you were sitting there every day, the same way it unfolded for me, because I had no idea. They were good lawyers so they were able to go through this whole thing without a lot of disputes. When there are a lot of disputes, then I know what witnesses say because they are arguing about hearsay, lawyers on both sides. I give the individual lawyers for the state much, much credit because they conducted, and I think Carole and her team will tell you that. They were good lawyers conducting themselves in a very honorable way to represent their client.
Did anything surprise you during the trial?
I got surprised every day. And if you noticed in the courtroom, there were always people that were my guests in the witness box. People that called me and said, “I’d like to see the trial. Can I come down and see the trial?” My wife was there many, many days. It’s funny who really got involved in the case. My wife came everyday because she was very, very interested. But some of the other people… that surprised me.
Why didn’t you issue a stay?
I didn’t issue a stay because I didn’t think a stay was appropriate. I ruled that it was denial of equal protection. How can I stay something knowing (that) in my own mind and writing an opinion, and we spent a long time on that opinion to make sure that what I wanted to say was said, although I wanted to say a lot more that I didn’t say. I wouldn’t have stayed it, because I didn’t think it was constitutional. Why would I stay something that wasn’t constitutional?
Did you expect the ruling from the 6th Circuit?
I didn’t know. I really didn’t know. I don’t study the Court of Appeals. I’m not one of those judges. I do my thing and I can’t tell you who most who of the judges are. I don’t sit there. A lot of judges like to go up there and sit. I sit in other places across the country. I don’t study them.
When you wrote your decision, were you thinking about SCOTUS in terms of helping to lay out the groundwork?
I was thinking about this case. I thought that the plaintiffs had such a strong case in terms of every argument that the state made, that all I was thinking about was this case. I was flabbergasted to be honest with you. I didn’t know what the testimony was going to be. I didn’t know who the witnesses were going to be. I didn’t know how they were going to prove the case. I assumed that since the state raised these issues in terms of outcome, that they had some phenomenal, great data and witnesses. I mean you have to assume that. I had no idea until I started listening to the case and it unfolded. But no, I thought only about this case. That’s how I always do it. Whether it is this case or any other case that is before me, I never think about what the Court of Appeals is going to do. I do think about precedent because I have to. I am sworn to that.