Banns could follow the ban
|By Andy Balaskovitz|
LGBT community sees upcoming trial as a chance to allow marriage equality in MichiganAs recently as a year ago, if you were to project states like Michigan, Virginia and Utah with Massachusetts and California as beacons of marriage equality, you might have been considered a hopeless optimist.
But following the U.S. Supreme Court’s decision to strike down the federal Defense of Marriage Act in June, federal judges in a variety of states have struck down same-sex marriage bans there. More challenges are pending. And if the last eight months are any indication, Michigan’s ban may very well be high on the list to go.
On Tuesday, the most significant challenge yet to Michigan’s 2004 constitutional amendment defining marriage between a man and a woman goes on trial in federal court in Detroit. What started in January 2012 as a challenge to Michigan’s adoption laws by two Detroit-area women raising three children has turned into a full-fledged attempt to overturn the state’s marriage amendment. Attorneys believe a decision by Judge Bernard Friedman could come within two weeks. With so many challenges staged, it’s only a matter of time till the U.S. Supreme Court takes it up.
Michigan’s LGBT community — watching with excitement as similar bans nationwide are being overturned — feels it has a shot at victory.
The arguments essentially boil down to this: the plaintiffs in the Michigan case — Hazel Park residents April DeBoer and Jayne Rowse — believe the state law violates the equal protection rights under the U.S. Constitution. The state argues that it should maintain the right to define mar riage
— even if that definition excludes certain individuals based on sexual orientation — and that doing so has a “legitimate governmental purpose.”
“They think this law is necessary to help encourage responsible procreation among heterosexual couples,” said Jay Kaplan, staff attorney for the ACLU of Michigan’s LGBT Project. His organization has filed two amicus briefs on the case. The national ACLU has helped seek expert witnesses, he said.
What makes the DeBoer case unique is that it’s going to a bench trial as opposed to a judge issuing a ruling based on oral arguments. While it might sound like nuanced legalese, Kaplan says this is “pretty significant,” because it will feature expert witnesses such as psychologists citing studies that show a parents’ sexual orientation does not affect the quality of a child’s upbringing. He said only the challenge over California’s Proposition 8 involved a bench trial.
“It’s very easy for a politician to go before the news media and say, ‘This is how things should be,’” Kaplan said of supporters of the marriage ban. “It’s much more difficult when you’re sworn under oath to be able to produce scientifically reputable studies that back up these presumptions you’re making.”
It’s hard to underestimate the significance of the DeBoer case. It would be a major victory in one of the harshest states for the LGBT community aligned as it is against a Republican governor, Legislature and a zealous, conservative attorney general who has defended the ban.
Lansing resident Paul Holland, 28, legally married his partner, Austin Ashley, in New York over the summer. They had a ceremony for friends and family in Michigan. The DeBoer case could impact whether they stay in Michigan — particularly its original challenge to the state law banning same-sex couples from adopting. Right now, a single parent within a same-sex relationship can adopt a child. But if something would happen to the adoptive parent, others would be in line for foster rights before the partner.
“Our timeline is three to four years to start a family,” Holland said. “If things are at that time as they are today, we’ll leave the state,” likely for New York. “It’s one of the things that, at least for me, is kind of a non-starter. I wouldn’t even consider starting a family under the current law.”
Yet Penny Gardner, 72, didn’t predict how quickly things would be changing.
“I’m very appreciative of the family that’s bringing this up before the courts,” said Gardner, who’s the president of the Lansing Association for Human Rights. “I do think that it’s only a matter of time for there to be marriage equality.”
Gardner also brings the perspective of having been in two heterosexual marriages before meeting her partner, Marilyn Bowen, of 18 years.
“Marriage is supposedly going to bring us stability, yet I also believe marriage between heterosexual people ends pretty regularly,” she said. “For those of us who have been married in heterosexual marriages, it can be a different kind of complexity you have to think of.”
Despite that complexity, there’s a palatable sense of optimism for marriage equality. The country is changing.
The research is in that shows same-sex couples are no less qualified to raise children than heterosexual couples.
“Discrimination is going to be on trial in Michigan,” Kaplan said. “Anytime you put discrimination on trial in a court of law — where you present evidence and studies — discrimination’s going to lose.”
Marriage equality is coming to a conservative state near you. Last week, a federal judge in Virginia overturned the commonwealth’s voter-initiated gay-marriage ban. The decision followed similar rulings — for violating due process and equal protection under the 14th Amendment — in Oklahoma and Utah.
In late 2013, the New Mexico Supreme Court issued a ruling allowing for same-sex marriages. It was the eighth state (along with Hawaii, Illinois, Delaware, Minnesota, Rhode Island, California and New Jersey) since 2011 to do so, either through legislation or court decisions, according to the National Council of State Legislatures.
Also last week, a Kentucky judge said the state must recognize same-sex marriages performed in other states.
Thirty-three states have laws on the books that define marriage between a man and a woman, while 17 states and Washington D.C. allow same-sex marriage.