By Jay Kaplan
The verdict is in, it seems: LGBT co-parents can have their kids unilaterally taken away from them by their former partner (the legal parent) – and the highest court in Michigan has essentially said it doesn't give a damn.
In denying to Leave to Appeal in our case, Mabry v. Mabry, a state Supreme Court majority — (and I'm going to name each and every one of them) Justices Robert Young Jr, Stephen Markman, Brian Zahra, David Viviano, and Joan Larsen — refused to consider the legal ramifications of denying LGBT co-parents the protections of equitable parenthood (which the court has conditioned on marriage) when these co-parents were unconstitutionally denied the right to marry in Michigan, while they were in relationships with their partners.
The ruling came despite an impassioned dissent by Justice Bridget McCormick (and joined by Justice Richard Bernstein) that noted that Deanna Mabry has been a parent to her three children, providing them love, support, affection and financial support.
The dissent aside, the Michigan Supreme Court opted instead for the end result of tearing families apart and allowing children of LGBT parents to lose their mommies at the unilateral whims of the biological parents.
The court's refusal to address the changing legal landscape brought about by the U.S. Supreme Court in the Obergefell v. Hodges marriage-equality decision shows a callous disregard for the stability of LGBT families and the best interests of the children involved in these custody disputes. Once again, Michigan's Supreme Court conservative majority in its unwillingness to consider and appreciate the diversity of Michigan's families has both harmed and let LGBT families down.
But unfortunately, this is nothing new.
This is the same Michigan Supreme Court that has held that local human-rights ordinances that protect LGBT people from discrimination are not enforceable against the cities and local governments themselves (Mack v. Detroit , 2002).
This is the same Supreme Court that held that Michigan's Marriage Amendment (later declared unconstitutional by the U.S. Supreme Court) not only denied same-sex couples the right to marry, but took everything off the table for them in terms of recognition by the state — no civil unions, no domestic partnerships, not even health insurance — making Michigan's prohibition one of the broadest in the country (National Pride at Work v. Granholm, 2008).
This is the same Supreme Court that limited the doctrine of equitable-parent protections to the context of a legal marriage, making Michigan the only state with such a limitation that ignores any focus on the parent-child relationship, or the best interests of children. (Van v. Zahorik , 1999).
This is the same Supreme Court, where then Chief Justice Maura Corrigan, without any pending LGBT adoption case before the Court, ordered Washtenaw County Circuit Court Chief Judge Archie Brown to stop Washtenaw County Circuit Court from granting second-parent adoptions to same-sex couples and he complied.
And we elect these Supreme Court justices. They are nominated by political parties (and appointed by governors), often holding the same political views of their nominating parties on LGBT rights. And yet when they are listed on the ballot, they are listed as non-partisan, allowing voters to be both misinformed and confused.
Is it any wonder that Michigan's Supreme Court, in a 2008 study conducted by the University of Chicago Law School, was ranked dead last in terms of independence from political or outside influences? Is it any wonder that a 2012 report by the bipartisan Judicial Task Force — headed by former Justice Marilyn Kelly and which included former U.S. Supreme Court Justice Sandra Day O'Connor — recommended changes to the way justices are elected and appointed, including providing voter guides to combat ignorance and misinformation regarding the qualifications of judicial candidates and the responsibilities that Justice have to the people of Michigan?
The collateral damage caused by last week's decision is both significant and heartbreaking. As we explore the feasibility of a legislative fix or federal legal challenges, we are left with a legal principle that deliberately harms and stigmatizes children of LGBT parents who were denied the right to marry in Michigan.
Once again, the Michigan Supreme Court has let us down.
