Judge's Opinion: Ordering trial for Mich. same-sex marriage ban - FOX 13 News

Judge's Opinion: Ordering trial for Mich. same-sex marriage ban

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The ruling on October 16, 2013 by Judge Bernard Friedman to hold a trial before deciding whether to overturn Michigan's ban on same-sex marriage.


Plaintiffs, Civil Action No. 12-cv-10285
I. Introduction and Facts
Plaintiffs April DeBoer and Jayne Rowse (collectively "plaintiffs") commenced this action
against Richard Snyder and Bill Schuette, in their respective official capacities as Governor of the
State of Michigan and Michigan Attorney General (collectively "defendants"), on the ground that
their enforcement and defense of section 24 of the Michigan Adoption Code (hereinafter "section
24"), Mich. Comp. Laws § 710.24, violates the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution.1 Plaintiffs further challenge the validity of
Michigan's constitutional prohibition against same-sex marriage (hereinafter the "Michigan
Marriage Amendment" or "MMA"), Mich. Const. Art. I, § 25, and statutory provisions barring the
same, Mich. Comp. Laws §§ 551.1-551.4, as violative of the Due Process and Equal Protection
Clauses of the Fourteenth Amendment.
1 The amended complaint added former Oakland County Clerk, Bill Bullard, Jr. as a party
defendant. As a result of the November 2012 election, Lisa Brown was elected as the Oakland
County Clerk/Register of Deeds and replaced Mr. Bullard on January 1, 2013.
2:12-cv-10285-BAF-MJH Doc # 89 Filed 10/16/13 Pg 1 of 8 Pg ID 1996
Currently before the Court is plaintiffs' motion for summary judgment [docket entry 67].
Defendants filed a response [docket entry 74] and plaintiffs filed a reply [docket entry 78].
Defendants then cross-moved for summary judgment [docket entry 69]. Plaintiffs filed a response
[docket entry 76] and defendants filed a reply [docket entry 79].2 The Court heard oral argument on
October 16, 2013.
The underlying facts are not in dispute. Plaintiffs are an unmarried same-sex couple
residing in Hazel Park, Michigan. They have lived together for the past six years and jointly own
their residence. Both women are state-certified foster parents. DeBoer is a nurse in the neonatal
intensive care unit at Hutzel Hospital and Rowse is an emergency room nurse at Henry Ford
Hospital, both located in Detroit. In November 2009, Rowse, as a single person, legally adopted
child N. In October 2011, also as a single person, she legally adopted child J. DeBoer, as a single
person, adopted child R in April 2011. Plaintiffs seek to jointly adopt the three children, but section
24 and the Michigan Marriage Amendment operate in tandem to prevent them from doing so. The
former restricts adoptions to either single persons or married couples and the latter restricts the
state's legal definition of marriage to heterosexual couples. Section 24 does not allow for the joint
adoption of a child by two unmarried parents.3
In their motion for summary judgment, plaintiffs contend that the MMA violates the Equal
2 Defendant Lisa Brown filed a brief in support of plaintiffs' motion for summary judgment
[docket entry 68] along with response and reply briefs [docket entries 75 and 80] corresponding to
defendants' cross motion for summary judgment and opposition papers.
3 Section 24 sub-section (1) provides in relevant part: "if a person desires to adopt a child
. . . that person, together with his wife or her husband, if married, shall file a petition with the court
of the county in which the petitioner resides or where the adoptee is found . . ."
2:12-cv-10285-BAF-MJH Doc # 89 Filed 10/16/13 Pg 2 of 8 Pg ID 1997
Protection Clause regardless of the level of constitutional scrutiny applied by the Court.4 Assuming
that the rational basis test applies, plaintiffs assert that the MMA is not rationally related to any
conceivable legitimate governmental purpose. Plaintiffs further urge the Court to invalidate the
MMA on substantive due process grounds because it violates their fundamental right to marry.
Plaintiffs raise the same equal protection and due process arguments against section 24 of the
Michigan Adoption Code.5
Defendants counter that plaintiffs' equal protection claims fail because plaintiffs cannot
demonstrate that the MMA lacks a rational relationship to any legitimate state interest. Defendants
4 Courts employ a three-tiered framework for evaluating whether a provision of law offends
equal protection principles. The most rigorous tier is "strict" scrutiny, which is reserved for laws
that either affect fundamental rights or discriminate against "suspect classes" such as racial, ethnic
or religious minorities. See Plyler v. Doe, 457 U.S. 202, 216-217 (1982); Loving v. Virginia, 388
U.S. 1, 11 (1967) (applying strict scrutiny to racial classification); Korematsu v. United States, 323
U.S. 214, 216 (1944) (applying strict scrutiny to classification based upon national origin). A more
relaxed form of inquiry is "intermediate" or "heightened" scrutiny. Courts have applied this
standard to laws that discriminate on the basis of gender, alienage or illegitimacy, also known as
"quasi-suspect classes." See Clark v. Jeter, 486 U.S. 456, 461 (1988) (applying intermediate
scrutiny to classification based upon illegitimacy); Miss. Univ. for Women v. Hogan, 458 U.S.
718, 723-724 (1982) (applying intermediate scrutiny to gender classification). Finally, the least
exacting tier is denominated "rational basis" review. For the most part, the rational basis test is
used to assess the propriety of legislation that does not implicate fundamental rights or
suspect/quasi-suspect classes. Currently, the Sixth Circuit Court of Appeals does not consider gays
or lesbians a suspect or quasi-suspect class. See Davis v. Prison Health Servs., 679 F.3d 433, 438
(6th Cir. 2012); Scarborough v. Morgan County Bd. of Educ., 470 F.3d 250, 261 (6th Cir. 2006).
5 The Court expresses no view on the constitutionality of section 24. The statute's
language limits those eligible to adopt children to single persons and married couples regardless of
sexual orientation or gender. It does not prohibit same-sex partners from marrying and, thereafter,
adopting children. While plaintiffs make a colorable claim that they and their children are, in fact,
injured by their ineligibility to petition for joint adoption, such injury is not attributable to
defendants' enforcement and defense of section 24. Plaintiffs may not jointly adopt their children
because they are not married. And plaintiffs may not marry because any legal form of same-sex
union in the state of Michigan is prohibited by the MMA. Thus, the relief plaintiffs request hinges
on the constitutional validity of the MMA.
2:12-cv-10285-BAF-MJH Doc # 89 Filed 10/16/13 Pg 3 of 8 Pg ID 1998
also contend that the MMA does not violate due process because the law does not recognize a
fundamental right to marry another individual of the same gender.
II. Summary Judgment Standard
Summary judgment is proper when there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. In considering a motion for summary judgment, the
Court construes all facts in a light most favorable to the non-moving party. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). There are no genuine issues of material fact when
"the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party."
Id. at 587. If the movant carries its burden of showing an absence of evidence to support a claim,
then the nonmovant must demonstrate by affidavits, depositions, answers to interrogatories and
admissions that a genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 324-
325 (1986).
III. Analysis
Assuming, without deciding, that the appropriate level scrutiny in this case is rational basis
review, a triable issue of fact exists regarding whether the alleged rationales for the MMA serve a
legitimate state interest.6 Under the rational basis test, the Court must determine whether the MMA
proscribes conduct in a manner that is rationally related to a legitimate governmental purpose. See
6 While the instant dispute must be adjudicated under the federal constitution, the Court, at
this time, reserves decision on the broader constitutional question of whether the MMA is subject
to heightened scrutiny because it encroaches upon a fundamental right under the Due Process or
Equal Protection Clauses of the Fourteenth Amendment. See Lyng v. Northwest Indian Cemetery
Protective Ass'n, 485 U.S. 439, 445 (1988) ("A fundamental and longstanding principle of judicial
restraint requires that courts avoid reaching constitutional questions in advance of the necessity of
deciding them.").
2:12-cv-10285-BAF-MJH Doc # 89 Filed 10/16/13 Pg 4 of 8 Pg ID 1999
Vance v. Bradley, 440 U.S. 93, 97 (1979); Guzman v. United States Dep't of Homeland Sec., 679
F.3d 425, 432 (6th Cir. 2012). When applying this standard, courts will not invalidate a provision
of law on equal protection grounds "unless the varying treatment of different groups or persons is
so unrelated to the achievement of any combination of legitimate purposes that [a reviewing court]
can only conclude that the government's actions were irrational." Kimel v. Florida Bd. of Regents,
528 U.S. 62, 84 (2000). "The government has no obligation to produce evidence to support the
rationality of its . . . [imposed] classifications and may rely entirely on rational speculation
unsupported by any evidence or empirical data." Hadix v. Johnson, 230 F.3d 840, 843 (6th Cir.
2000). Instead, it is incumbent upon plaintiffs to refute "any reasonably conceivable state of facts
that could provide a rational basis for the classification." FCC v. Beach Communications, Inc., 508
U.S. 307, 313 (1993).
Nonetheless, the rational justification of the MMA must be rooted "in the realities of the
subject [being] addressed . . ." Heller v. Doe, 509 U.S. 312, 321 (1993). And when a provision of
law adversely affects a group that has endured "historic patterns of disadvantage," courts make "a
more careful assessment of the justifications than the light scrutiny offered by conventional rational
basis review." Massachusetts v. United States Dep't of Health and Human Servs., 682 F.3d 1, 11
(1st Cir. 2012); see also United States v. Windsor, 133 S. Ct. 2675, 2696 (2013) (invalidating the
Defense of Marriage Act on the ground that "no legitimate purpose overcomes the purpose and
effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in
personhood and dignity.").
Defendants offer several grounds for Michigan's exclusive recognition of heterosexual
marriages. These fall under four distinct categories: (1) providing children with "biologically
2:12-cv-10285-BAF-MJH Doc # 89 Filed 10/16/13 Pg 5 of 8 Pg ID 2000
connected" role models of both genders that are necessary to foster healthy psychological
development; (2) forestalling the unintended consequences that would result from the redefinition
of marriage; (3) tradition or morality; and (4) promoting the transition of "naturally procreative
relationships into stable unions." To survive summary judgment, plaintiffs must raise a triable issue
of fact as to each of defendants' asserted justifications for the MMA. Plaintiffs have met this
In response to defendants' contention that only heterosexual marriages can provide children
with the appropriate gender role-modeling required for healthy psychological development,
plaintiffs submit the affidavit of Dr. Jeanne Howard, Co-Director of the Center for Adoption
Studies at Illinois State University. She attests that:
For almost three decades researchers have compared outcomes of children raised
by same sex parents to those raised by opposite sex parents. In large and small
studies, studies of lesbians and of gay men, studies of families formed through
birth, and adoption and assisted technology, all studies consistently have found no
differences for children in psychological adjustment, gender identification, school
performance, self-esteem, anxiety, depression, behavior problems, social
relationships and emotional problems, cognitive functioning, level of investment
and quality of parent/child relationship.
Pls.' Br. Ex. 6 at ¶6A (emphasis added). Furthermore, Dr. Howard noted that in her professional
the evidence clearly demonstrates that gays and lesbians have equal parenting
skills to their heterosexual counterparts. As adoption expert Dr. David
Brodzinsky notes . . . "the data are unequivocal in showing that lesbian and gayheaded
households show patterns of psychological social, and academic
adjustment similar to their peers raised by straight parents . . . In addition, . . . [on
gay or lesbian adoptive families] the results are consistent with the findings of
previous research: lesbian and gay adoptive parents and their children show
patterns of adjustment similar to those of heterosexual adoptive parents and their
2:12-cv-10285-BAF-MJH Doc # 89 Filed 10/16/13 Pg 6 of 8 Pg ID 2001
Id. at ¶6E (emphasis added).7 After reviewing the record, including Dr. Howard's affidavit, the
Court concludes that a genuine issue of material fact exists with respect to defendants' gender rolemodeling
justification for the MMA.
Nor is the Court persuaded that a rational trier of fact could not find in plaintiffs' favor
based upon defendants' other justifications for the MMA, all of which have been rejected by other
courts in recent years. See Windsor, 133 S. Ct. at 2694 (ruling the Defense of Marriage Act
unconstitutional although "over 1,000 statutes and numerous federal regulations . . . pertaining to
Social Security, housing, taxes, criminal sanctions, copyright, and veterans' benefits" would be
affected); Lawrence v. Texas, 539 U.S. 558, 583 (2003) (holding that "[m]oral disapproval of a
group cannot be a legitimate governmental interest under the Equal Protection Clause."); Windsor
v. United States, 833 F. Supp. 2d 394, 404 (S.D.N.Y. 2012) (stating that "[i]t does not follow from
the exclusion of one group from federal benefits (same-sex married persons) that another group of
people (opposite-sex married couples) will be incentivized to take any action, whether that is
marriage or procreation."); Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 999-1000 (N.D. Cal.
2010) (finding that California's constitutional amendment prohibiting same-sex marriage did not
"make it more likely that opposite-sex couples will marry and raise offspring biologically related to
both parents."). Whether any of these justifications can survive rational basis review in the present
case must be determined after a trial.
Regarding plaintiffs' motion for summary judgment, although counsel cites to relevant case
law issued by persuasive authorities, the Court may not simply adopt the findings of fact and
7 The amici curiae briefs filed on behalf of plaintiffs cite to numerous similar experts who
arrive at the same conclusion.
2:12-cv-10285-BAF-MJH Doc # 89 Filed 10/16/13 Pg 7 of 8 Pg ID 2002
conclusions of law previously issued in other proceedings. See Weinstein v. Islamic Republic of
Iran, 175 F. Supp. 2d 13, 16-17 (D.D.C. 2001); see also Cactus Corner, LLC v. United States Dep't
of Agric., 346 F. Supp. 2d 1075, 1099 (E.D. Cal. 2004) (stating that "[e]ven where, under the
doctrine of stare decisis, a court is generally compelled to abide by conclusions of law made in
prior proceedings of higher courts, a court cannot take judicial notice of another court's
determination of the truth of those facts."). Rather, the parties must be afforded the opportunity to
develop their own record in this matter with the benefit of calling witnesses and subjecting them to
cross-examination. Accordingly,
IT IS ORDERED that plaintiffs' motion for summary judgment is denied.
IT IS FURTHER ORDERED that defendants' cross motion for summary judgment is
IT IS FURTHER ORDERED that the parties shall exchange final witness lists no later than
thirty (30) days from the date of this opinion and order.
IT IS FURTHER ORDERED that the parties shall appear for trial on Tuesday, February
25, 2014, at 9:00 a.m.
Dated: October 16, 2013 S/ Bernard A. Friedman____________
Detroit, Michigan BERNARD A. FRIEDMAN
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