SCOTUS Justices Roberts & Kennedy

Just prior to the Fourth of July holiday, on one of the last days of its term, the SCOTUS announced the split-decision in Obergefell v Hodges, a case from the 6th Circuit Court of Appeals, our appellate circuit, that also included the Michigan case of April DeBoer. In Justice Anthony Kennedy's opinion, the right of same-sex couples to marry is treated as a fundamental right under the 14th Amendment to the United States Constitution.

Readers of this blog are well familiar with the various marriage equality civil rights struggles that have played out in courts across the country over the past decade. But it was never a given that the High Court would pronounce such a sweeping endorsement of a now-fundamental right.

The right to marry the person of one's choice, whether that person be of another race or of the same gender, is perhaps one of the most important decisions we make in our lives. So it does follow that such a right, although not expressly stated in our constitution, is truly fundamental; our basic human experience makes it so.

The 5-4 marriage equality decision, authored by Justice Kennedy, was joined by all three female justices as well as Justice Steven Breyer. Each of the conservative justices authored scathing dissents with Justice John Roberts being the most analytic among the quartet.

The basic holding of the majority opinion is that the 14th Amendment to the U.S. Constitution requires all states to license a marriage between two persons of the same gender and to recognize same-sex marriages performed in other states.

In reaching this conclusion, Justice Kennedy discussed how the institution of marriage has evolved since the Colonial era, marked by arranged marriages. He then cited to some of the landmark cases involving homosexuality such as Bowers v Hardwick [the 1986 case that upheld Georgia's criminalization of certain homosexual acts]; Lawrence v Texas [the 2003 decision overruling Bowers]; and of course, United States v Windsor [striking down as unconstitutional the federal Defense of Marriage Act which defined a marriage as solely between one man and one woman in the federal benefits context].

Justice Roberts' principal dissent makes the following points, as summarized by Cornell University Law Professor Michael C. Dorf:

(1) there is a difference between support for same-sex marriage as a policy matter and as a constitutional matter; (2) premature constitutionalization of a right that cannot yet be said to be deeply rooted in the nation’s history and traditions risks undermining long-term support for the right because defeat of the anti-same-sex-marriage position in the democratic process would be more acceptable; and (3) the majority’s logic opens the door to claims such as a right to polygamy. 

Voicing the true conservative disdain for an activist Court, Justice Roberts says that SCOTUS should not "seize for itself" a question that our Constitution leaves for the people to decide using the political machinery.  "Who do we [justices] think we are?", he asks.

While the SCOTUS does generally eschew significant constitutional pronouncements, it has a long-tradition of righting the wrongs of rogue state legislatures and an occasionally errant Congress. This is the essence of our check-and-balance system of federalist government.

Before news of the decision in Washington D.C. even hit the left coast, new issues involving same-sex partnerships were being conjured-up by legal scholars. Now that such couples have a constitutional right to marry, when they do so, can disputes involving employment and housing discrimination be far behind?  Also, where does this leave the so-called "religious preference" laws?

The nice thing about our ever-evolving common law system, from the lawyers' perspective, is that there is always another legal dispute just around the corner; the dust never really settles.

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Michigan Attorney General Bill Schuette filed a brief with the United States Supreme Court yesterday laying out Michigan's official position on the constitutional question of whether states can ban same-sex marriage. The response brief was filed in the April DeBoer case, currently pending at the SCOTUS and scheduled for oral arguments on April 28th.

Readers of this blog know that we have consistently supported same-sex marriages and adoptions, posting favorable editorials since 2009 when the first federal case arose in California, and tracking the issue ever since.  That said, the AG really lands some compelling points in Michigan's brief.

The issue, as framed by the SCOTUS and now amplified by the Michigan Attorney General, is whether states are required to license same-sex marriages; and whether states must recognize same-sex nuptials performed in another state.

The Michigan AG asserts that in a democratic society, it is offensive to have un-elected federal jurists deciding such important intimate issues that have been resolved by a local electorate. Further, the AG asserts that the United States Constitution is silent on the question of marriage thus, to fashion such rules by federal judicial fiat demonstrates "a lack of faith in democracy" which comes at a high cost to all of our fundamental rights.

Of course, it is the fundamental right of Due Process and self determination that constitutes the flip side of that argument.  Like in the Loving v Virginia decision from the 1960s -endorsing interracial marriages- the DeBoer case once again focuses the SCOTUS on whether certain rights, such as the right to select whom to marry, regardless of race or gender, are so fundamental that no state or federal law can interfere.

The scheduled oral arguments at the end of April truly will be historic. We here at the Law Blogger see this as the civil rights issue of our time.

As often stated by Michigan Attorney General Bill Schuette, the sooner the High Court decides this issue, the better, for everyone.

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SCOTUS Chief Justice John Roberts

Last Friday, the SCOTUS conducted an important chambers conference to decide whether to grant certiorari this term to the consolidated appeals in the DeBoer case.  April DeBoer's case was consolidated with other cases from Ohio, Kentucky and Tennessee, and Sixth Circuit Judge Jeffrey Sutton reversed federal district court judges that invalidated state law same-sex marriage and adoption bans.

A ruling from the High Court on this petition could come by the end of the week. Then, the cases could be argued this term, which goes through most of June.

Here is a good analysis of Judge Sutton's decision from a Huffington Post law blogger; and here is Lyle Denniston's [SCOTUSBlog] take on the judicial conference:

The release of orders on Friday had been eagerly awaited across the country, because the Court, at its private Conference, was scheduled to take its first look at the new round of cases on state power to ban same-sex marriage.  The Court’s next chance to issue any order on those cases will be at 9:30 a.m. Monday, with the release of a lengthy list of actions on new cases.  If no action on the five marriage cases comes then, the cases are likely to be rescheduled for a Conference next Friday.

Meanwhile, the costs to the various states in their largely unsuccessful challenges to the same-sex marriage civil rights movement, and their equally unsuccessful attempts to enforce state law same-sex marriage bans, are mounting.  Attorney fee petitions are slowly collection across the country seeking reimbursement for the legal costs of striking the state law bans.

The price tag is the the millions and will surely increase over the next few years.  Who do you think should pay this price: the taxpayers or the litigants?

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Judge Lisa Gorcyca

November 25 is recognized in Michigan and Oakland County as Adoption Day. Accordingly, there were events scheduled to commemorate the event in the Oakland County Family Court, including a visit by Michigan Supreme Court Justice Brian Zahra, who presented a resolution of the Michigan Supreme Court officially recognizing Adoption Day in Oakland County.

Oakland County Family Court Judge Lisa Gorcyca presided over the event, and then performed an adoption for April DeBoer, who adopted her third child.  Ms. DeBoer is one-half of the same-sex couple that have garnered headlines for challenging Michigan's adoption law, which disallows adoptions by same-sex couples.

This blog has followed the same-sex couple's federal case, now heading to the SCOTUS, as it has wound its way through the federal court system  -starting in Detroit, then Cincinnati, and now Washington, D.C.-  picking-up lots of public interest along the way.   Currently, their case is getting briefed right here in Oakland County and oral arguments likely will be scheduled before the Supreme Court for late spring or early fall.

In granting the adoption, Judge Gorcyca, looking beyond the politics of DeBoer's case, said, "I've had a chance to follow the love you feel for your entire family.  If they prevail in their adoption case, Ms. DeBoer and her partner, Jayne Rowse, will be able to jointly adopt the four adopted children living in their Hazel Park home.  Presently, the couple must adopt the children independent of one another.

Even the couple's opponent in their high-profile case, the Michigan Attorney General, has acknowledged that DeBoer and Rowse are excellent  parents.  As noted by Ms. DeBoer at her recent adoption proceeding, she feels the love and acceptance in Judge Gorcyca's courtroom, but when she walks out the door, she is jarred by the reality that she, her partner and their adopted children are not recognized as a legal family.

We here at the Law Blogger hope that will change soon. Should the change come from our Legislature, or from the High Court; that is the real question.

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By:  Timothy P. Flynn

You need to be an appellate lawyer to follow the recent high-speed developments in the same-sex marriage jurisprudence coming to a rapid boil across the country.  The principal case here in Michigan has had some complicated procedural developments over the past few weeks; we will break it down for you if we can.

As those that follow the news, and this blog well know, U.S. District Court Judge Bernard Friedman issued an opinion and order declaring Michigan's state constitutional ban to be a violation of the Equal Protection clause of the United States Constitution.

In conjunction with Governor Snyder, Michigan's Attorney General has aggressively pursued the state's appellate options in the DeBoer same-sex marriage and adoption case.  Since losing the case at trial, Attorney General Bill Schuette has done what any state actor appellate attorney would do: a) seek a stay of the trial court's ruling pending a resolution of the inevitable appeal, and b) expedite this inevitable appeals process by requesting what is inconveniently referred to as an "en banc" appeal.

These filings by the Michigan Attorney General make a lot of sense.  And the United States Court of Appeals for the Sixth Circuit seems willing to play along.

First, consider that the Sixth Circuit immediately granted the AG's motion for an emergency stay, so Judge Friedman's ruling is held in abeyance for the time being; no more legal gay marriage licenses can be issued in Michigan.

Second, we here at the Law Blogger happen to think that AG Schuette's latest motion for en banc review makes a lot of procedural sense.  Generally, when a litigant loses a trial, our system of justice provides for a second look; the trial judge is not the final word in any given case.

When a losing litigant becomes an appellant, the case is assigned, in both state and federal courts, to a 3-judge panel to decide the matter via majority vote.  The party that loses an appeal has the option to inveigh the entire appellate court; an en banc appeal.  In the case of the Sixth Circuit, that includes 23 judges.

Most appellate litigants that apply for en banc consideration are rejected.  Rather than suffer this procedural rejection, many appellate litigants elect to push on the the High Court; the United States Supreme Court.

Not so with the DeBoer case; a case that has profound constitutional significance and that has become a symbol of the civil rights struggle of our time.  Attorney General Schuette is correct to seek en banc review rather than intermediate appellate review from a 3-judge panel; why waste the time and resources.

There is no doubt that this case, along with select others from across the nation, will be ultimately decided by the SCOTUS, as in the United States v Windsor decision.  Like the abortion issue that preceded it, the same-sex marriage issue will be a deep and rich jurisprudence that will flesh-out over time.

Cutting to the chase, as the Michigan Attorney General wants to do, makes a whole lot of sense.

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Michigan's first couple
with their lawyer.

United States District Court Judge Bernard Friedman, in a historic ruling, not only held that Michigan's ban on same-sex marriages, set forth in our state constitution, violates the U.S. Constitution, he also refused to stay his ruling.  This means that marriage licenses are being issued here in Oakland County and across the state as this post is being composed.

Citing United States v Windsor, the federal court ruled that Article I, section 25 of Michigan's Constitution violated the Equal Protection clause of the U.S. Constitution, as applied to the states through the 14th Amendment's Due Process clause.  Judge Friedman concluded his 30-page opinion in very plain terms:

In attempting to define this case as a challenge to the 'will of the people', state defendants lost sight of what this case is really about: people. No court record of this proceeding could ever fully convey the personal sacrifice of these two plaintiffs who seek to ensure that the state may no longer impair the rights of their children and the thousands of others now being raised by same-sex couples. It is the Court's fervent hope that these children will grow up, 'to understand the integrity and closeness of their own family and its concord with other families in their communities and in their daily lives.' [quoting SCOTUS language from Windsor]

Because Judge Friedman refused to stay the effect of his ruling to accommodate an appeal from the state defendants, the Michigan Attorney General filed an emergency motion for a stay with the United States Sixth Circuit Court of Appeals.  Look for Judge Friedman's ruling to be appealed and consolidated with other similar federal court rulings on same-sex marriages currently pending throughout the Sixth Circuit [Michigan, Ohio, Kentucky, and Tennessee].

Meanwhile, however, game on!  Before the press even got hold of the DeBoer opinion and order, county clerks in Ingham, Oakland, Washtenaw and Muskegon announced Saturday hours for the express purpose of issuing same-sex marriage licenses.

According to the Freep, the first official same-sex marriage took place shortly after 8:00 am today in the lobby of the historic Mason courthouse.

Update: Sunday, 03/22/2014.  Not so fast.  In an apparent reverse of their earlier indication that they were not planning to interfere with Michigan's federal same-sex marriage case, the U.S. Sixth Circuit Court of Appeals issued a temporary stay until this Wednesday, "to allow a more reasoned consideration of the [Michigan Attorney General's] motion to stay.". This means that no more same-sex marriage licenses can be issued by the county clerks until the federal appellate court lifts the stay.

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Judge Bernard Friedman
Sorting through the experts

This morning, closing arguments are scheduled in the same-sex marriage trial over which U.S. District Judge Bernard Friedman has presided the past two weeks.  Judge Friedman, having denied cross motions for summary judgment in the case, gets to decide the constitutionality of two Michigan statutes: the ban on same-sex marriage [approved by a 57% voter initiative in 2004], and the prohibition of gay adoptions.


The trial began with the testimony of Oakland County Clerk Lisa Brown; she indicated that she is prepared to "follow the law"
which, depending on how Judge Friedman rules, may include issuing marriage licenses to same-sex couples.  [Note: the Law Blogger has been tracking this issue in other states like New Mexico where county clerks have been issuing such marriage licenses on the heels of post-Windsor federal court rulings striking state law bans on gay marriage.]

Brown, also a defendant in the case, has made her personal views known: she believes that gay couples are denied marriage licenses unfairly.  She testified about a state-wide memo issued by the Michigan Attorney General last fall to Michigan's 82 county clerks instructing them not to issues such licenses, regardless of how Judge Friedman decided the DeBoer case.

Other than the one county clerk, the trial has consisted of a parade of expert witnesses.  Select sociologists, professors and legal experts all had their moments to shine during the trial.  While this has been a quick trial, we here at the Law Blogger wonder whether these experts have aided the trier of fact in deciding the case, or whether they have polluted Judge Friedman's courtroom with junk science.

For their part, experts for the gay parents have attempted to blackboard data in support of their equal protection claim that children raised by gay parents have measurable outcomes on a par with traditional parents.  The Plaintiffs' experts have also drawn parallels with interracial families, concluding that Michigan should join what these experts depict as a strong trend toward social acceptance of gay marriages.

Experts for the state, on the other hand, painted a consensus that no reliable sociological data yet exists to support the Plaintiff's case; they also contend that traditional families, with a Mom and Dad, have the best child outcomes, citing to statistical reports they say support this conclusion.

Finding his testimony would, "add nothing to the case", Judge Friedman disqualified the state's first expert, Catholic philosopher and author Sherif Gergis.   Then there was the state's final expert, Canadian economist Douglas Allen; he testified, unequivocally, that unrepentant gay couples faced eternal damnation.

Is Judge Friedman now better informed?  Or does he have to digest a full-plate of junk science, with religious seasoning?

Soon, we'll all know whether Michigan's anti-gay statutes will pass constitutional muster; at least at the initial trial stage.  Then its on to the appeals, where the DeBoer case will be consolidated with other similar cases percolating through the Sixth Circuit here in Michigan, and in Ohio, Kentucky and Tennessee.

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The family at the heart of the case.

To be sure, there will be a "battle of the experts" in Downtown Detroit this week and next at the Theodore Levin federal courthouse.  Today is the commencement of the trial ordered by U.S. District Judge Bernard Friedman between the lesbian couple seeking to overturn Michigan's adoption and same-sex marriage laws on equal protection grounds, and Michigan's Governor and Attorney General who seek to enforce our state law ban on such arrangements.

Of course there is much publicity surrounding the case today on the Internet; and for a very good reason.  This case stands out among all the same-sex cases percolating across our nation for the reason that Judge Friedman declined to grant either side's dispositive motions back in October, electing to evaluate evidence in the case during a scheduled two-week trial.

Now, bring on the experts.  Both sides claim to be able to support their case with "scientific" evidence.

For their part, the lesbian couple -April DeBoer and Jayne Rowse- plan to capitalize on expert testimony from new studies that conclude children raised by same-sex couples have just as much promise and opportunity as children raised by traditional parents.  Their lawyer told the Freep yesterday:

We have sociologists, child growth experts, and psychologists (who) uniformly agree that child outcomes for children raised by gays and lesbians is just as promising as those kids raised by heterosexuals.

 The State of Michigan's legal team has its own arsenal of experts to provide testimony in this case.  In addition, it has been beating the drum that Judge Friedman, sitting in federal court, should not be making this decision because the voters of Michigan decided the issue via voter initiative back in 2004.

Judge Friedman had the opportunity to make a legal ruling on the merits of the respective positions last October, but ordered a trial instead.  We here at the Law Blogger now wonder whether this trial will be an exposition of modern child development theory, or a parade of junk science.  Stay tuned to be enlightened on these issues.

Whatever Judge Friedman decides, he will be appealed to the Sixth Circuit Court of Appeals in Cincinnati sometime later this year; the case could be headed to the SCOTUS.

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By: Timothy P. Flynn

Earlier this year, United States District Court Judge Bernard Friedman held in abeyance the case challenging Michigan's ban on gay marriage until SCOTUS decided the United States v Windsor case in June.  Now, in the wake of Windsor -which struck down the Defense of Marriage Act banning federal benefits to gay couples- a hearing has been scheduled for mid-October in the Michigan case.

April DeBoer and Jayne Rowse, a lesbian couple from Hazel Park, filed the federal law suit because Michigan law prevents them from adopting each other's children.  The Michigan Attorney General is opposing the suit, asserting the couple's claim merely seeks to avert a valid Michigan law: the 2004 constitutional amendment defining a legal marriage as solely between a man and woman.

This case has been attracting much attention with Judge Friedman allowing several groups to file briefs in the case.  The Michigan Catholic Conference, on one side, asserts that the 2004 Marriage Amendment advances a valid state interest: the preservation and proliferation of family life through traditional marriage.  On the other side, a group of law professors at the Cooley Law School, along with other constitutional law scholars from across the country, assert that Michigan's Marriage Amendment should be subjected to a "heightened scrutiny" on the basis the amendment does not advance a legitimate state interest.

Whatever Judge Friedman does in this case, his decision will be appealed to the Sixth Circuit Court of Appeals in Cincinnati and then on to the SCOTUS, with perhaps a post-Windsor companion case or two. We here at the Law Blogger knew that it would not be long before Michigan joined in the fray of what has become the civil rights issue of our time.

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