(Crystal A. Proxmire, for Between the Lines, July 3, 2013)
Referencing the recent U.S. Supreme Court ruling that struck down part of the Defense of Marriage Act (DOMA), Federal Judge Bernard Friedman has denied the State of Michigan’s motion to dismiss the case of a Hazel Park lesbian couple seeking to marry and to adopt their children. April DeBoer and Jayne Rowse sued the State of Michigan and the County of Oakland because as a same-sex couple they are not allowed to be issued a marriage license, and they are not allowed joint adoption for their children.
Representing the state, Joseph E. Potchen argued in March of this year, that changes in marriage and adoption should be made in the legislature, not in the courts. He repeatedly claimed that having a man and a woman in a home is the “optimal situation” for child-rearing. Potchen also said that while the state did approve both Rowse and DeBoer for foster parenting, adoption is different because foster care situations are intended to be temporary and the state or the biological parent retains guardianship. He had urged the judge to dismiss the case during the March proceedings. Instead Friedman decided to hold off on ruling on the dismissal request until the Supreme Court gave “guidance.”
Now that part of DOMA has been ruled unconstitutional, it has opened the door to more protections for same-sex couples, and the Hazel Park case will proceed. “Plaintiffs are entitled to their day in court and they shall have it,” Friedman wrote in his decision Monday.
Attorney Dana Nessel, who represents the couple, explained the court process. “The motion to dismiss was pending. He’s allowing the case to move forward, with a hearing on July 10. At that hearing he will ask if either side has any evidence to present in trial.
“They (the defense) could bring in experts or they could decide to cross-examine April and Jayne. But they have already agreed that there is no issue of fact in the case, only an issue of law. There are no facts that we need to dispute, so hopefully there will not be any evidence to present. If this is just a matter of law, we will move forward on a motion for summary judgment. The judge will read briefs from both sides and make his decision from there.”
At the conclusion of the July 10 hearing, either a trial will be scheduled or a judgment made based on the briefs.
In his decision not to dismiss the case, Judge Friedman wrote, “The U.S. Supreme Court’s recent decision in United States v. Windsor has provided the requisite precedential fodder for both parties to this litigation. Defendants will no doubt cite to the relevant paragraphs of the majority opinion espousing the state’s ‘historic and essential authority to define the marital relation.’ They will couch the popular referendum that resulted in the passage of the MMA (Michigan Marriage Amendment) as ‘a proper exercise of [the state’s] sovereign authority within our federal system, all in the way the Framers of the Constitution intended.’
“…On the other hand, plaintiffs are prepared to claim Windsor as their own; their beliefs sure to be replete with references to the newly enthroned triumvirate of Romer v. Evans, Lawrence v. Texas and Windsor. And why shouldn’t they? The Supreme Court has just invalidated a federal statute on equal protections grounds because it ‘place(d) same-sex couples in an unstable position of being in a second-tier marriage.’ Moreover, and of particular importance to this case, the justices expressed concern of the natural consequence of such discriminatory legislation would not only lead to the relegation of same-sex relationships to a form of second-tier status, but impair the rights of ‘tens of thousands of children now being raised by same-sex couples’ as well. This is exactly the type of harm plaintiffs seek to remedy in this case.”
On July 10 at 3 p.m., parties will convene for a conference with the judge to determine what scheduling will be necessary for the rest of the case to play out.
In the meantime, Nessel and her clients remain hopeful and patient. “We expect that this case will be appealed no matter how Judge Friedman rules,” Nessel said.