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Defining what makes a family

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April DeBoer and Jayne Rowse, a lesbian couple who live in Hazel Park with their three children, have a de facto family that isn’t legally recognized.

DeBoer and Rowse want to get married, but Michigan is one of 37 states which don’t allow same-sex marriage. As is the case with 26 of these states, Michigan’s gay marriage ban is found in the state constitution, Proposal 04-2, passed by the voters in 2004 with 59 percent of the vote, which defines marriage as only between a man and a woman. As a result, DeBoer and Rowse, two nurses who have lived together for six years, had to settle for a private commitment ceremony in 2008.

Then there is the matter of their children. DeBoer has an adopted daughter, while Rowse has two adopted sons. Adoption is supposed to be in the best interest of the child, with two parents providing more security. DeBoer and Rowse sought to adopt each other’s children, giving them joint custody of all three children, but ran into a strange quirk in Michigan adoption law, which allows a single person to adopt a child but bans joint custody for unmarried couples.

Last year, DeBoer and Rowse filed a lawsuit against the state in the U.S. District Court for the Eastern District of Michigan in Detroit, challenging the constitutionality of Michigan’s ban on adoption by unmarried couples. The case was assigned to Judge Bernard Friedman, a conservative Republican appointed to the federal bench in 1988 by then-President Ronald Reagan. Last September, Friedman encouraged DeBoer and Rowse to expand the case to question the constitutionality of Michigan’s gay marriage ban, and their lawyers followed through on his suggestion.

In March, Friedman held a hearing on the gay marriage ban, with Carole Stanyar, DeBoer’s and Rowse’s lawyer, arguing that the ban violates the equal protection clause of the 14th Amendment. Dana Nessel, another lawyer for the couple, had previously argued that, “Bigotry against a certain class of people is not a state purpose.” While Friedman repeatedly expressed skepticism that the ban serves any rational government purpose, he put a decision on hold to wait for the U.S. Supreme Court to provide him some guidance by ruling on two other same-sex marriage cases.

The Supreme Court decided these cases in June. In United States v. Windsor, it ruled by a 5-4 vote that the Defense of Marriage Act (DOMA), which defined marriage for federal purposes as only between a man and a woman, prevented the federal government from recognizing the validity of same-sex marriages, and allowed states to refuse to recognize same-sex marriages from other states, violated the equal protection clause. Marital status affects 1,138 federal statutes, including such matters as Social Security benefits and estate taxes.

In his majority opinion, Justice Anthony Kennedy ruled that DOMA, in denying federal benefits to same-sex married couples, “singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty,” with the federal government using the state-defined class “to impose restrictions and disabilities.”

The second case, Hollingsworth v. Perry, was more on point for DeBoer and Rowse, but the Supreme Court side-stepped the question of whether state same-sex marriage bans are unconstitutional to decide it on a technicality. In 2008, California voters, with a 52 percent majority, approved Proposition 8, which banned same-sex marriage. In 2010, Chief Judge Vaughn Walker of the U.S. District Court for the Northern District of California ruled that Proposition 8 violated both the due process and equal protection clauses of the 14th Amendment by removing rights from a disfavored class with no rational basis. Walker’s decision was upheld by the Ninth Circuit U.S. Court of Appeals in 2012 by a 2-1 vote, with the majority finding no compelling state interest justifying denying same-sex couples the right to marry, a due process violation.

California officials had stopped defending Proposition 8, with private parties appealing the case. The Supreme Court, by a 5-4 vote, ruled that these private parties didn’t have legal standing to bring an appeal, letting Walker’s ruling stand with no decision of its own on the merits.

Friedman has scheduled a hearing for October 1, with lawyers making new arguments incorporating the Supreme Court decisions. Given his previous comments and ongoing legal developments, it would be no surprise if he were to find Michigan’s same-sex marriage ban unconstitutional. Appeals would certainly follow. While there are also court challenges to state gay marriage bans in Pennsylvania, North Carolina and Virginia, this case is much further along and may reach the Supreme Court for a definitive decision on this issue.

All DeBoer and Rowse wanted was for them and their children to be recognized as a family, but a favorable decision by the Supreme Court in their case could make marriage equality a national reality.

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