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Gay marriage in legal limbo

What does it mean to be married?

For about 300 same-sex couples married in Michigan on March 22, that’s a good question, because their marriages are in legal limbo.

These marriages occurred after Judge Bernard Friedman, of the U.S. District Court for the Eastern District of Michigan in Detroit, ruled on March 21 in the case of DeBoer v. Snyder that the state’s gay marriage ban under the Michigan Marriage Act (MMA) violates the equal protection clause of the 14th Amendment and barred its enforcement.

In his legal opinion, Friedman said, “The Court finds that the MMA impermissibly discriminates against same-sex couples in violation of the Equal Protection Clause because the provision does not advance any conceivable legitimate state interest.”

Friedman’s decision was similar to those issued by federal judges who struck down same-sex marriage bans in Texas, Virginia, Kentucky, Oklahoma and Utah. Currently, 17 states and the District of Columbia allow same-sex marriage.

Like the Utah judge, Friedman didn’t issue a stay on his court order pending appeal. On the following day, a Saturday, four county clerks opened their offices for special hours during which marriage licenses were issued to same-sex couples and weddings were performed. The clerks, all Democrats, were Lisa Brown of Oakland County, Lawrence Kestenbaum of Washtenaw County, Barb Byrum of Ingham County, and Nancy Waters of Muskegon County.

Michigan Attorney General Bill Schuette appealed Friedman’s ruling to the U.S. 6th Circuit Court of Appeals, which issued a stay a few hours after the clerks began issuing licenses, preventing any more same-sex marriages in Michigan while the case is pending.

That left a questionable legal status for the same-sex couples that had already gotten married, for marital status confers a large number of rights under both state and federal law.

Leave it to Gov. Rick Snyder to muddy the waters. In an attempt at hairsplitting, Snyder said these marriages are legal, but the state won’t recognize them as long as the stay is in effect, making these couples ineligible for such state benefits as joint health insurance and adopting each other’s children.

The federal response was more clear-cut. At the request of Democrats in the Michigan congressional delegation, Byrum and East Lansing Mayor Nathan Triplett, on March 28 U.S. Attorney General Eric Holder extended federal recognition to the Michigan same-sex couples. Holder had done the same thing in January for more than 1,000 Utah same-sex couples married over a 17-day period between the judge’s ruling and an appellate stay. Federal rights include Social Security benefits and jointly filing income tax.

This leaves about 300 couples in the confusing and bizarre position of having some marital rights but not all of them. But the uncertainties they have to live with don’t matter to Snyder and Schuette, whose appeal looks like a futile rear guard action from a homophobic bigot.

The case began in January 2012 when April DeBoer and Jayne Rowse, two lesbian nurses from Hazel Park who have lived together for eight years, sued the state to challenge the constitutionality of its ban on adoption by unmarried couples. DeBoer has an adopted daughter, while Rowse has two adopted sons. They wanted to cross-adopt each other’s children, but Michigan adoption law only allows adoption by married couples or a single person.

At the suggestion of Friedman, a conservative Republican appointed to the federal bench in 1988 by Ronald Reagan, the case was expanded to challenge the constitutionality of the MMA, approved by voters in 2004 with 59 percent of the vote.

Friedman moved cautiously with the case, waiting until after the Supreme Court ruled last year in United States v. Windsor that the Defense of Marriage Act (DOMA), which denied federal recognition of same-sex marriages, violated the equal protection clause, before proceeding further. He then conducted a trial in the case.

Most of the trial focused on Schuette’s claim that the MMA provides an optimal environment for child rearing. Plaintiff witnesses presented studies finding that children of same-sex couples do just as well in school as those of heterosexual couples. These witnesses, found highly credible by Friedman, also pointed out that the MMA can have a destabilizing effect for children raised by same-sex couples if the sole legal parent dies or becomes incapacitated, because their partner has no legal parental status

Schuette responded with witnesses offering flawed studies on children with gay parents. Friedman found these witnesses unbelievable and representing a fringe viewpoint.

As a further demonstration of the weakness of his case, Schuette turned hypocrite. While he has repeatedly tried to undermine the state’s medical marijuana law, passed by the voters in 2008 with 63 percent of the vote, Schuette said the MMA should be upheld because it was approved by voters.

Voter approval of a law is irrelevant if it violates the U.S. Constitution, leading Friedman to conclude, “In attempting to define this case as a challenge to ‘the will of the people,’ state defendants lost sight of what this case is truly 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.”

Friedman said his decision, “affirms the enduring principle that regardless of whoever finds favor in the eyes of the most recent majority, the guarantee of equal protection must prevail.”

In the face of his embarrassing courtroom defeat, there were calls for Schuette not to appeal the case and waste more taxpayer money on it. He responded that he is duty-bound to uphold the MMA, ignoring the fact that state attorneys general in Virginia, Oregon, Illinois, Nevada, Pennsylvania and California have refused to defend gay marriage bans in court.

And so some 300 Michigan same-sex couples remain in legal limbo until the Supreme Court finally resolves the matter. Given the result in the Windsor case, it will probably be in their favor. DeBoer and Rowse could have joined them by getting married in Oakland County on March 22, but decided to hold off until their case has been concluded.

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