[MsTinkerbelly]

Mich. judge expected to rule today on gay-marriage ban
Tresa Baldas, Detroit Free Press 12:45 p.m. EDT October 16, 2013
Lawsuit began as challenge to Michigan ban on adoption by unmarried couples.

DETROIT — A federal judge is expected to decide the fate Wednesday of Michigan's ban on gay marriage, either giving two women the right to pursue their dream of having a family or upholding the state's position that only men and women can marry and have children.

The issue has landed in the hands of U.S. District Judge Bernard Friedman, who in June refused to toss out a lesbian couple's lawsuit challenging the state's ban on adoption by unmarried couples. Friedman, citing the June U.S. Supreme Court decision that recognized legally married gay couples, concluded the plaintiffs are "entitled to their day in court and they shall have it."

That day is today.

At 2:30 p.m., a hearing on the matter is scheduled before Friedman, who is expected to decide on the constitutionality of Michigan's ban on gay marriage and determine whether or not the state is unlawfully discriminating against two nurses who want to get married and adopt each others' children.

If Friedman lifts the ban without issuing a stay, same-sex marriage would be legal in Michigan until, and unless, a higher court overturns it. If he doesn't, the status quo remains: no gay marriage in Michigan.

"We're cautiously optimistic that a ruling will come," said Dana Nessel, one of four lawyers representing the plaintiffs. "When you have waited this long for some semblance of equality, you kind of want it right now. You don't want to wait any longer."

Whatever Friedman decides, an appeal will follow from either side. The state has vowed a vigorous fight to uphold the 2004 voter-approved constitutional amendment that defined marriage as "the union of one man and one woman."

The state argues it has "legitimate state interests" in defining marriage as such.

“When you have waited this long for some semblance of equality, you kind of want it right now. You don't want to wait any longer.”
— Dana Nessel, lawyer representing the same-sex plaintiffs
"Michigan supports natural procreation and recognizes that children benefit from being raised by parents of each sex who can then serve as role models of the sexes both individually and together in matrimony," the state has argued in court documents.

The state also argues that Michigan voters have spoken on the issue of gay marriage and that their decision should stand.

"There is no fundamental right to marry a person of the same sex, and nothing in the U.S. Constitution requires or permits federal courts to invalidate a state's decision defining civil marriage as the union of one man and one woman," the state wrote in court documents.

The case involves April DeBoer, 42, and Jayne Rowse, 48, who in January 2012 challenged the state's ban on same-sex adoption. They later decided also to take on the the state's ban on gay marriage, which 59% of voters approved in 2004.

The plaintiffs argue the ban unlawfully violates their right under the Equal Protection Clause of the U.S. Constitution to get married and adopt each others' children. Rowse has two preschool-aged boys; DeBoer has a 3-year-old girl. They also argue the state has no rational basis for denying them the right to get married and adopt kids.

Meanwhile, Nessel believes that gay and lesbian community in Michigan has suffered long enough from discrimination. She believes a ruling favoring her clients could trigger long overdue positive changes for gays and lesbians the state that she contends has among the worst records for gay and lesbian rights.

"You can't go lower than what we have," Nessel said. "This is why it's so important for us to have a federal court ruling on this because the Legislature is not doing anything to protect this very vulnerable population of people

“One Detroit lawyer in a black robe doesn't have the legitimate constitutional or moral authority to overturn the will of millions of Michigan voters.”
— Gary Glenn, American Family Association of Michigan
"It's very critical that we have a federal court step in and say, 'No, you cannot use your laws to discriminate against what has historically been an unpopular segment of society," she said.

To date, 14 states have legalized gay marriage, according to ProCon.org, a nonprofit and nonpartisan group that researches controversial issues. Another 35 states, including Michigan, have gay marriage bans through either laws or constitutional amendments. Only one state, New Mexico, has no law legalizing or banning same-sex marriage.

The New Jersey Supreme Court said it will soon decide whether gays can marry there, and a Utah federal judge in December will hear arguments about that state's ban.

In June, the U.S. Supreme Court issued two landmark same-sex marriage rulings: one directed the federal government to provide equal treatment to same-sex spouses, the other allowed gay marriages in California to resume.

In a 5-4 ruling, the nation's highest court struck down the 1996 Defense of Marriage Act, which denied federal benefits to gay couples married under state law. The court found that gay couples married in states where it's legal must receive the same health, tax, and other benefits offered to their heterosexual counterparts.

However, the high court rulings haven't deterred Michigan Attorney General Bill Schuette from fighting to uphold the state's constitutional amendment defining marriage as being between one man and one woman.

"The U.S. Supreme Court has ruled that states retain the constitutional authority to define marriage," said Schuette spokeswoman Joy Yearout. "We will continue to aggressively defend Michigan's Constitution in this case."

Gary Glenn, who leads the conservative American Family Association of Michigan, said it would be a mistake for a judge to extinguish a law on the books for nearly a decade.

"One Detroit lawyer in a black robe doesn't have the legitimate constitutional or moral authority to overturn the will of millions of Michigan voters," Glenn said.

In Ann Arbor, the Washtenaw County clerk's office said judges and clergy will be available at the local courthouse if Friedman allows same-sex marriage. The county will waive the typical three-day waiting period to get a license, at least on Thursday.

"There's obviously a lot of emotion, and a lot of people have been waiting a long time," said Ed Golembiewski, chief deputy clerk.

Bishop Jerry Brohl of Blessed John XIII Community, a church for Christians of all stripes in Wyandotte, near Detroit, said he's eager to bless same-sex marriages, even if he doesn't know the couple.

"Under normal circumstances, I'd want to spend a bit more time with a couple," he said. "But under these circumstances, I feel I need to make an exception. You have two mature persons who are committing themselves to a relationship based on love.