Michigan judge delays case to await Supreme Court rulings on gay marriage

The Michigan case aims to allow same-sex couples to adopt children and, therefore, to marry, but it's likely to be impacted by two landmark gay-rights cases before the US Supreme Court.

By MARK GUARINO | The Christian Science Monitor

March 7, 2013 at 3:26 pm EST

A Michigan judge announced Thursday that he is delaying his decision on a case challenging that state’s gay marriage ban until June, when the US Supreme Court is expected to announce its rulings on two landmark gay-rights cases.

At issue before the high court is whether measures such as the federal 1996 Defense of Marriage Act (DOMA) or California's Proposition 8 discriminate against homosexuals in violation of the Equal Protection Clause of the 14th Amendment.

"I'll be watching those cases close," US District Judge Bernard Friedman told The Detroit News. "Hopefully, the Supreme Court will give us some direction."

In the Michigan case, two Detroit-area women are challenging the state’s gay marriage ban because it prevents them from jointly adopting their three children under the state’s adoption requirements that they be legally married.

Michigan is one of a handful of states that has a state code that forbids unmarried couples from adopting children. The case, which had been expected to resume at a hearing in Detroit on Thursday, began as a challenge to that state restriction.

But at the urging of the Judge Friedman, the couple expanded their complaint to challenge the state's constitutional ban on same-sex marriage – not because it violates the Equal Protection Clause but because it prevents same-sex couples from complying with the state's requirements for legally adopting children.

“They would get married but because they are lesbians, they can’t,” says Dana Nessel, the attorney for April DeBoer and Jayne Rowse of Hazel Park, Mich. “The state code also affects unmarried couples but, for us, if you’re unmarried and really want to have kids together, then get married. Our clients don’t have that option.”

The couple filed their complaint against the adoption code in January 2012, but in an August hearing Friedman, an appointee of President Reagan, suggested that their best legal option was to challenge the state’s gay marriage ban.

The ban, which Michigan voters approved with nearly 59 percent of the vote in 2004, prohibits gays from legal marriages, civil unions, or domestic partnerships. The state is one of 31 states with constitutional amendments, approved by voters, prohibiting same-sex marriage.

Under the current law, unmarried couples in Michigan cannot jointly adopt children. In the case of Ms. DeBoer and Ms. Rowse, one partner has legally adopted one child while the other has adopted the other two. By jointly adopting the children, the couple would share a legally recognized relationship, which they say is essential because their three special needs children face long-term physical and mental impairments. The couple has shared the same residence for six years.

Friedman’s decision to push the couple to challenge the state’s gay marriage band is unusual, says Carl Cecere, an attorney in Dallas who has represented same-sex couples seeking marital rights. He says that even if the ban is overturned, it may benefit the couple, but won’t “answer the question whether unmarried couples have an easy path to adoption.”

“None of the things they raise in their motion to dismiss really directly address the challenge raised. In some way [the adoption ban] is a harder challenge. It’s interesting and strange the couple has to go through gay marriage door to get there,” Mr. Cecere says.

Legal experts say the case will likely be impacted by the two cases before the US Supreme Court. The Defense of Marriage Act (DOMA) defines marriage as only between one man and one woman. Prop. 8 is California's voter-approved ban on gay marriage, passed in 2008.

“Historically all these questions are decided at the state level and it’s very exceptional that the federal government will intervene with regard to family law questions at all,” says Darren Rosenblum, a law professor at Pace Law School in White Plains, N.Y. “One of the questions before both courts is whether there is a constitutional protection for same-sex couples against this kind of discrimination. Certainly the outcome of the cases before the [US] Supreme Court right now will at least elucidate how Michigan will rule on these cases.”

A ruling on the DOMA case is less likely to affect the Michigan court battle because it focuses primarily on states that already have same-sex marriage as a legal option and the jurisdiction that the federal government has in such matters. In that case, the court is deciding on whether or not states that don’t have same-sex laws on the books must recognize same-sex marriages from other states where it is legal.

Michigan Attorney General Bill Schuette argues that his state's voter-mandated state ban stands up to any federal challenge and that, in addition, the couple cannot show how living in a household where both parents are not married will injure their children.

In their complaint, attorneys for DeBoer and Rowse say that “by prohibiting a second parent from adopting the child of that parent’s partner, Michigan law impairs deeply personal relationships, deprives the minor child plaintiffs in this case of the myriad legal, sociological, and psychological benefits attendant upon having two legal parents.”

Paul Linton, the general counsel for the Thomas More Society, a Chicago not-for-profit law firm advocating for cases involving religious liberty, says that the reason why a state like Michigan does not allow unmarried couples to adopt “is because of the uncertainty and instability of the relationship.”

“The couple is not married, is not in a civil union or domestic partnership. So the state is saying the children should be given stability in the adoption setting,” he says. “The threshold of stability is of parents somehow having a legal relationship to each other.”

According to court papers, in February 2007 the couple expressed vows at a commitment ceremony, which is not legally binding.

Mr. Linton says that it is unlikely that the Michigan case will become a national trend, because so few states have laws that forbid unmarried couples from adopting together.

“I’m not sure this challenge to same-sex marriages will present itself as a vehicle for other cases, when so very few states prohibit this kind of law to begin with,” he says.

Still, DeBoer and Rowse say that they are hopeful the delay in their case will inevitably mean a ruling in their favor. “We are hopeful and confident … hopefully our children will be ours,” DeBoer says.

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