U.S. District Judge David Lawson

Over a year ago, U.S. Federal District Judge David Lawson enjoined public entities from refusing the provide government benefits to domestic partners or same-sex couples.

Last month, in Bassett, et al vs Governor Snyder, Judge Lawson finally issued a 34-page opinion disposing of the cross motions for summary judgment filed in the matter. The decision cites to Judge Friedman's ruling in the DeBoer case as well as the seminal case on federal benefits: United States v Windsor.

The Michigan law that was struck in the federal case bans public schools and local governments from offering benefits to same-sex couples. In striking down the state law, Judge Lawson characterized the law as being imbued with an "irrational prejudice".

In so ruling, Judge Lawson distinguished his case from the multitude of same-sex marriage and adoption cases now pending on appeal.  Judge Lawson noted that, "this case is not about marriage." He said the state law ban, "amounts to a classification based on an irrational prejudice which cannot be sustained."

Contrary to the state's assertions that the ban was merely designed to save money, Judge Lawson saw an animus against gays; a punishment of same-sex couples.

Considering that the Sixth Circuit Court of Appeals reversed Judge Friedman's DeBoer decision supporting same-sex couples, an appeal filed by the Michigan Attorney General would seem inevitable; the deadline recently passed so we will be checking PACER on Monday.

These issues will continue to play out in the federal appellate circuits over the next few years. For our part, we will continue to monitor and report on the developments. The pace quickens for this task.

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Last June, I was preparing for oral argument in a wrongful death case before a panel of the United States Sixth Circuit Court of Appeals in Cincinnati, Ohio.  In that file preparation, we learned that one of the judges on our panel, Jeffrey S. Sutton, a George Bush appointee, was the former law clerk to SCOTUS Justice Antonin Scalia; it does not get more conservative than that.

Judge Sutton was the presiding judge in the DeBoer case and authored the 64-page, 2-1 appellate opinion; his analysis was consistent with his conservative judicial philosophy.  As is now widely known and reported, the Sixth Circuit reversed U.S. District Judge Bernard Friedman's opinion and order from last year invalidating Michigan's ban on same-sex marriage and adoption on constitutional grounds.

As is often the case in federal appeals, the DeBoer case was combined with several others, from other states in the 6th Circuit: Ohio, Kentucky and Tennessee.  The portion of the caption in this case, listing the myriad attorneys glomming onto the file, goes on for 3 and 1/2 pages; it's getting ridiculous.

We predicted that attorneys in the DeBoer case and its companion cases would act quickly and yesterday, petitions were filed for certiorari in the case with the United States Supreme Court.  We here at this blog were pleased to see one of our guest bloggers, Wayne State Law Professor Robert Sedler, to be listed among the corps of esteemed legal counsel of record in the case.

The sole and simple issue raised on appeal is whether state denial of the same-sex right to marry [and adopt children] comports with our federal constitution.  In the petition, DeBoer asserts that hers is the ideal case because:

• there was a 9-day trial with a fully-developed record [actually, it was more like a battle-of-the-experts, as so many high-profile case are these days]; 
• unlike other states where the state attorney general declined further challenge after losing in federal court, or at the intermediate appellate stage, the Michigan Attorney General has vowed to carry on the fight to the SCOTUS; and 
• the Sixth is the first federal circuit to uphold a state law ban on same-sex marriage giving rise to a conflict among the federal circuits for the first time; something that SCOTUS looks for when assessing the hundreds of petitions for certiorari.

Assuming the SCOTUS is of a mindset to address this civil rights issue with this round of cases, and assuming that the various state actors submit their filings by mid-January, the DeBoer case could well be argued this term.

Oral arguments at some point in April will leave the High Court in a position to issue a decision in the case by the end of the term in June.

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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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As the SCOTUS perpares to consider some momentous same-sex marriage cases this term in Washington, D.C., Michigan has a few cases of its own that deserve consideration.  Federal District Judge Bernard Friedman has recently taken one case under advisement in Detroit as he awaits direction from the SCOTUS on this issue; while the other case involves today's Up North wedding between two men, pictured at left, Tim LaCroix and Gene Barfield.

Michigan is an interesting state for the same-sex marriage issue to arise. In 2004, voters approved a constitutional amendment to ban same-sex marriage.  If SCOTUS declares a similar ban in California unconstitutional, the floodgates could be opened for same-sex couples.

In the case pending in the U.S. District Court for the Eastern District of Michigan, a gay couple first set out to challenge the adoption laws that they alleged discriminated against same-sex couples.  Their lawsuit then morphed into a challenge to Michigan's 2004 constitutional amendment which defines a marriage as between a man and a woman.  Plaintiffs in the suit are a lesbian couple from Hazel Park.

Defending Michigan's constitution is the Michigan Attorney General, who argues that the amendment does not discriminate against specific groups but rather, is merely "an affirmative statement about the virtues of traditional marriage".

Today's Up North wedding between the two men is scheduled to take place at an unknown location; presumably somewhere on the Odawa Indian Reservation or lands.  The same-sex marriage was endorsed by a close majority of the legislative body of the Indian Tribe.

Because the tribe to which the men belong is recognized by the U.S. Government, it is not bound by state law thus, the 2004 constitutional amendment does not apply to the Tribe.  Major-league loophole.

We here at the Law Blogger, like Judge Friedman, will be watching SCOTUS for its decision on the issue.

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Whether a search of your computer is legal depends, in large part, on where the search takes place.  If you are singled-out at an international boarder, for example, you are going to be searched regardless of the presence of a "reasonable suspicion".

If you are in a place where you have a reasonable expectation of privacy, on the other hand, the Fourth Amendment to the U.S. Constitution requires probable cause prior to a justified police search of your digital data.

This issue is coming-up with increasing frequency as people travel with their digital lives at their side; and thanks to the increasing sophistication of law enforcement search methods.

Courts have determined that international borders are areas where government interests trump any reasonable expectation of privacy, if one even exists at all.  Customs agents at these boarders are trained to look for smugglers, terrrorists, and child pornographers.

The heightened search and seizure powers of Customs agents were tested in a recent case involving a local contract employee with the Walled Lake Consolidated Schools.  Two years ago, Craig Aleo was intercepted at the US-Canadian border in Buffalo, NY.  Customs agents conducted a digital inspection of his laptop and discovered images of child pornography; some of them made and distributed by Aleo.

The former Davisburg resident and Walled Lake schools employee was sentenced last January by federal judge Bernard Friedman to 60-years in federal prison. 

While no one wants their digital life disturbed when traveling through borders, particularly lawyers with briefcases of confidential goldmines, neither does anyone feel sorry for child pornographers or terrorists.

In another recent case, this one involving a suspected "terrorist", the former Muslim chaplain at Guantanamo Bay was routinely subjected to digital inspections whenever he re-entered the US.  Once, upon being searched and released, the Muslim chaplin discovered that the Customs agent left a forensic scan disc in his computer.  Although the chaplain was not a terrorist, he fit the profile, so the digital inspections were conducted.

A thorough digital scan of a lap top computer can take more than 3-hours, and that's without securing a warrant.  Forensic hard-drive copies take even longer to produce.

Digitized information does not always carry signs of illegality like child porn images.  Evidence of terrorism, for example, is often well-hidden and encrypted in the machine's hard-drive. 

The National Association of Criminal Defense Lawyers has taken the position that laptop computer searches conducted at international borders are "non-routine" and thus should require some modicum of articulable suspicion. 

Such articulable suspicion is required by highly invasive search modes such as the search of a person's ailmentary canal.  A laptop search is probably even more intrusive as it encompasses your entire being, both personal and professional.

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