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Exciting news coming out of an unlikely spot, Michigan: From The Detroit Free Press (also the source of the press conference video above):

Hazel Park mother April DeBoer said she and her lesbian partner are challenging Michigan’s same-sex marriage law not for themselves, but to protect the rights of their kids.

DeBoer and partner Jayne Rowse decided to take the battle they’re already fighting in U.S. District Court in Detroit one step further today. They amended their complaint in front of Judge Bernard A. Friedman that asks for the right to adopt as a same-sex couple, instead challenging Michigan Gov. Rick Snyder, Attorney General Bill Schuette and Oakland County Clerk Bill Bullard Jr. to declare Michigan’s ban on same-sex marriage and partnerships unconstitutional.

The women came to this lawsuit through a circuitous route. Initially, their intention was to challenge only Michigan's restriction that children could only be adopted by single people, or married people. Michigan is among the states that does not allow "second parent adoptions." It was not their intention or inclination to challenge the ban on marriage, but felt that was the more fundamental issue that stood in the way of them being made whole as a family.

Back on Aug. 29, the CBS affiliate reported it was the judge that swayed plaintiffs in this direction:

A federal judge has decided to wait ten days before deciding if a lesbian couple can adopt a child.  Judge Bernard Friedman encouraged two Detroit-area lesbians who are raising three children to file a legal challenge to Michigan ban on gay marriage.
Interestingly, I recall that when federal court employee Karen Golinski's initial action to have her lesbian partner's insurance covered by the Office of Personel Management was dismissed the federal judge did recommend she refile via another route. Ultimately, her challenge of the Defense of Marriage Act proved successful in the Ninth trial court.

Question: Can legal experts tell me if it's common for judges to offer counsel to plaintiffs on legal strategy? Or are both these situations unusual?

The Detroit News illuminates the legal strategy plaintiff's counsel are pursuing:

DeBoer and Rowse argue the state's marriage amendment violates the equal protection and due process clauses of the U.S. Constitution.

The law, they say, excludes them from benefits and protections such as "support for family finances, and other public and private safety nets."

Further, they say it's unconstitutional to deny same-sex couples the right to be married and that children of such couples should be allowed all of the protections and benefits — such as health care coverage — of heterosexual couples.

The women are asking the federal judge to stop Schuette and Snyder from "attempting to block same-sex couples', including the adult plaintiffs', attempts at securing a marriage license in any county of Michigan."

Sara Wurfel, a spokeswoman for Snyder, said Friday the proper venue to challenge the marriage statute may be through the constitutional amendment process.

"The Michigan marriage amendment was a vote of the people adopted eight years ago," she said.

Ah yes. They're very fond of the "vote of the people" in Michigan. Unless the people want to go and vote for a mayor of their own choosing, then their vote really isn't very sacrosanct to Gov. Snyder, is it? Voting for your own local elected officials to represent you is a disposable right in Michigan.

The case is significant in that should Michigan's state constitutional ban be found to be at odds with the federal Constitution, it's highly likely the other 30-some bans would be unenforceable as well. But of course, the resolution of that question is many years off should the case even make it to the Supreme Court.

This would be the first marriage equality lawsuit in the Sixth Circuit. Thus far, marriage equality challenges "proper" have only been filed in the federal Ninth Circuit. This would include the Prop 8 case, and a lawsuit in Nevada by Lambda Legal which is currently in pre-trial motions at district level. [Update: jpmassar reminds me there is a constitutional challenge to Hawaii's marriage equality ban in federal court as well. Hawaii is also in the Ninth Circuit.]

Defense of Marriage Act challenges, which have been filed in the First, Second and Ninth Circuit, do not assert the constitution guarantees a fundamental right to same-sex marriage for all United States citizens. DOMA challenges argue only for the right to have an existing marriage recognized federally. Prior to American Foundation for Equal Rights bringing the Prop 8 challenge, LGBT legal organizations have been shy to mount such cases fearing insufficient legal groundwork had been done.

The plaintiffs here, represented by the private firm of Nessel and Kessel appear to be working outside the established LGBT rights advocacy groups, such as Gay and Lesbian Defenders, National Center of Lesbian Rights, and Lambda Legal, although American Civil Liberties Union is quoted in the News as being supportive of the suit.

The very idea that such a lawsuit seems necessary seems folly to me. We have here three adorable orphaned children and two women who have been the only parents they've ever known. The women wish to be committed legally, financially, spiritually and inextricably to these children for life. It seems clear the children would like this as well.

What possible rationale could there be for the state to deny that outcome? Why would the state decide DeBoer and Rowse were adequate to be foster parents in perpetuity but insufficient to legally be declared the children's mothers?

What good is accomplished by putting roadblocks to this family's quest to be made whole? How does anyone benefit from such a limitation, particularly the children, who most want the comfort of knowing they have a stable and loving home that is permanent? This is the worst application of big government interfering in private lives and may this family find justice.

Originally posted to Milk Men And Women on Sat Sep 08, 2012 at 09:13 AM PDT.

Also republished by Angry Gays.

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Comment Preferences

  •  Well I can answer this question (15+ / 0-)
    How does anyone benefit from such a limitation, particularly the children, who most want the comfort of knowing they have a long and stable home?
    The professional haters who have carved out a nicely profitable living fighting hard against equality, that's who.
  •  If we don't stand up for these families, who will (12+ / 0-)

    stand up for us when TeaPublicans attack our families for other "religious" reasons?

    I choose love over hate.

    Nature created the human race, but humans created racism.

    by GrannyOPhilly on Sat Sep 08, 2012 at 09:32:29 AM PDT

  •  This could ultimately (some years in the future) (10+ / 0-)

    produce a Circuit split.  The Ninth Circuit ruling in favor of marriage equality as a fundamental right, and this circuit ruling the opposite (or less likely, vice versa).

    Then we better hope that, one way or another, at least one conservative justice has been replaced by a progressive one...

    •  Yet another reason we need to (6+ / 0-)

      maintain control of the presidency.

      •  Jesse Jackson was right... (2+ / 0-)
        Recommended by:
        Scott Wooledge, gizmo59

        ...the three best reasons to vote for Al Gore were the Supreme Court, the Supreme Court, and the Supreme Court.

        OTOH Wikipedia says the judge in this case is a Reagan appointee.

        And I'm VERY surprised to hear a federal judge may have been encouraging a litigant to expand her claim. That could easily get the judge disqualified from the case, if true.

        "The true strength of our nation comes not from the might of our arms or the scale of our wealth, but from the enduring power of our ideals." - Barack Obama

        by HeyMikey on Sat Sep 08, 2012 at 02:10:41 PM PDT

        [ Parent ]

        •  I did purposefully relayed (1+ / 0-)
          Recommended by:
          HeyMikey

          that was the CBS-affiliates reporting on the judge providing counsel, being aware, the reporter might have misunderstood something? Who knows?

          I'm sure the hearing transcripts will show if he was out of line.

          Is it out of line?

          You're not being "oppressed" when another group gains rights you've always enjoyed.

          by Scott Wooledge on Sat Sep 08, 2012 at 02:25:10 PM PDT

          [ Parent ]

          •  I'd think so. (0+ / 0-)

            Of course, all I know is what your diary says about what CBS says, so I don't know what the judge actually said. But as a general rule a judge shouldn't advise one side what legal arguments they ought to make.

            "The true strength of our nation comes not from the might of our arms or the scale of our wealth, but from the enduring power of our ideals." - Barack Obama

            by HeyMikey on Sat Sep 08, 2012 at 07:51:53 PM PDT

            [ Parent ]

    •  Not a fundamental right, no (4+ / 0-)
      Recommended by:
      Scott Wooledge, bythesea, gizmo59, QDMacaw

      Just in California.  Judge Walker asserted it was a fundamental right, but the 9th did not agree with that portion of his ruling.  They only said you can't give a right and then take it away (i.e. Prop 8).  Other states in the 9th did not gain marriage equality.

      Minority rights should never be subject to majority vote.

      by lostboyjim on Sat Sep 08, 2012 at 10:55:20 AM PDT

      [ Parent ]

  •  What a family! (9+ / 0-)

    They're amazing.

    The issue of marriage equality is something I support whole heartedly but this case is a concern to me for another reason.

    What about people, (and I've only heard this from straight people thus far) who truly do not want to be legally married? What if two people were best friends or happened to be the godparents of a child and they're both single but responsible, equally responsible for the child as per the will of the deceased parents? Are these two people, (one of them is mom's best friend and the other is dad's best friend--no relation between these people) gonna be forced to get married?

    I have a shared parenting agreement with my kids' dad. We can both be the legal guardians of our kids with the only distinction being that one of us is considered the residential parent (where the kids reside during the school week). He's not the bio parent of the oldest one and yet he has the same legal rights to the boy and we don't even live together. In fact, shared parenting exists because people BREAK UP and they no longer live together.

    So, in Michigan, you have to break up before you can have legal rights to a child? (assuming the laws are similar to Michigan in this regard). You have to tear the child's life apart first?

    And, btw, what do they mean about "second parent adoption"? My son essentially had to be "adopted" by his dad because it's not his real dad and the mediator was aware of it. It was no big deal.

    I'm just trying to understand why is it easier for people raising a child between TWO homes to get the rights to the kids while people living in the same house can't do it? I'm sure both of those women are not related to those kids any more than my son is related to his dad.

    This was a sneaky way to restrict same sex couples from adopting kids together. This is bullshit. I think they might have a better chance than some of us believe. If the lawyer can point to laws that already exist to govern custody agreements and the like....just sayin.

    "It's not enough to acknowledge privilege. You have to resist." -soothsayer

    by GenXangster on Sat Sep 08, 2012 at 09:41:20 AM PDT

    •  I meant; '..assuming the laws (2+ / 0-)
      Recommended by:
      Steveningen, commonmass

      in Michigan are similar to the ones in OHIO". Sorry. :-)

      "It's not enough to acknowledge privilege. You have to resist." -soothsayer

      by GenXangster on Sat Sep 08, 2012 at 09:44:04 AM PDT

      [ Parent ]

    •  I can't say I'm overly concerned about them (5+ / 0-)

      To be clear, many states have second parent adoption laws so two single people can adopt the same child. And they seem to work out just fine, and I'm totally supportive of legislatures going that way. And I think it's a good idea. It seems only sane and reasonable this modern world of blended families that the idea that a child could and should only have one mom and one dad is a little antiquated, or that the state has a interest in enforcing such a rule.

      But to this general school of thought that I hear bandied about in leftist circles:

      What about people, (and I've only heard this from straight people thus far) who truly do not want to be legally married?  
      I mean, if you're talking of people who have a legal option to be married, I can't say I'm super sympathetic.

      For me it sounds like, "Well, I don't want to have to get a driver's license to obtain the state benefit of being able to legally drive a car... Why should I have to get a license from the state for the sake of getting state benefits?"

      I mean, that's just the way it is and for a good reason, imo. Paperwork is a necessary evil if we'd like our state to recognize and track our legal relationships to one another. Do we really want courts to litigate whether a shared Electricity Bill constitutes the legal basis for a divorce action and community property fight?

      You're not being "oppressed" when another group gains rights you've always enjoyed.

      by Scott Wooledge on Sat Sep 08, 2012 at 09:54:32 AM PDT

      [ Parent ]

      •  I think a lot of this attitude comes from the (1+ / 0-)
        Recommended by:
        Scott Wooledge

        (mistaken) belief that marriage always is and always has been primarily a religious institution, along with a conceptual confusion between the status of being married and the event of a wedding ceremony. Some of it is really a form of adolescent rebellion: "it's old, therefore it's bad." Some of it assumes that marriage is inherently oppressive, usually citing obsolete things like coverture; the idea is that marriage is fatally poisoned and thus rendered poisonous by its history.

        If you integrate fantasy with reality, you do not instantiate reality. If you mix cow pie with apple pie, it does not make the cow pie taste better; it makes the apple pie worse. --Mark Crislip

        by ebohlman on Sat Sep 08, 2012 at 06:21:26 PM PDT

        [ Parent ]

        •  I agree. (1+ / 0-)
          Recommended by:
          ebohlman

          that yes,  on the left people seem to say, "i don't want to get married because it's inherently (pick your complaint: inherently oppressive, patriarchal, hetero-normative, a religious sacrament, etc...)"

          Which seems just dumb to me.

          A piece of paper issued by the State cannot possibly define the terms of one's relationship to one's intimate partner.

          Lots of people forge "non-traditional" marriages, non-monogamous, stay at home dads and female breadwinners, childless, atheist, queer, queer, queer—whatever, while also being legally recognized by the State.

          It's as though they imagine the state can rob them of their free will.

          You're not being "oppressed" when another group gains rights you've always enjoyed.

          by Scott Wooledge on Sun Sep 09, 2012 at 12:40:38 PM PDT

          [ Parent ]

    •  Oh, and "second parent adoptions" (5+ / 0-)

      laws in some states that allow for say a step-dad or mom to adopt a child even when the biological dad or mom is still around, so legally the child would have two dads or two moms.

      They obviously convenience LGBT couples, but are also helpful to straight people who, for whatever reason want to make more permanent the relationship of another parent.

      Some states allow it, some don't. IMO, they all should. I see very few downsides and more upside.

      You're not being "oppressed" when another group gains rights you've always enjoyed.

      by Scott Wooledge on Sat Sep 08, 2012 at 09:58:39 AM PDT

      [ Parent ]

      •  I know, Scott, I was just using that as (2+ / 0-)
        Recommended by:
        Scott Wooledge, bythesea

        a starting point for the point I was trying to make which was that it starts to get convaluted when you consider all the different scenarios that could happen with a ban on second parent adoptions and how pointing out this convaluted scenario could work to the advantage of LGBT couples.

        I realize after rereading it that it sounded like I was being dismissive of same sex marriage concerns for the concerns of the privileged who have a choice. I was just trying to understand the logical and legal reasons for not allowing second parent adoptions and there didn't seem to be anything that made sense except that it was an attempt to undermine LGBT couples trying to adopt.

        Sorry I wrote that to sound that way. Sometimes I try to see the argument for being who are trying to make dry legal points and that's probably not the right tone after that touching video of that adorable family.

        "It's not enough to acknowledge privilege. You have to resist." -soothsayer

        by GenXangster on Sat Sep 08, 2012 at 10:23:18 AM PDT

        [ Parent ]

        •  oops, "argument for PEOPLE not being" lol (1+ / 0-)
          Recommended by:
          Scott Wooledge

          what is wrong with me today. I can't write for shit. I'm going to take a nap. ;-P

          "It's not enough to acknowledge privilege. You have to resist." -soothsayer

          by GenXangster on Sat Sep 08, 2012 at 10:24:40 AM PDT

          [ Parent ]

        •  I would imagine the main concern (2+ / 0-)
          Recommended by:
          QDMacaw, GenXangster

          on a second parent adoption is it might make parental relationships less clear cut and could (hypothetically) clog courts with custody battles.

          But, given courts usually give deference to biological parents and nowadays are having to become creative about custodial and guardian arrangements it seems a realitively minor concern.

          Consider the offset that a child with three, or four, legal parents is less likely to become a burden on the state (custodially and financially), so there's a state advantage to opening up the options.

          And of course objections also come from traditionalists who just can't/won't accept American families cannot be legally shoehorned into an Ozzie and Harriet ideal they imagine every family should be.

          You're not being "oppressed" when another group gains rights you've always enjoyed.

          by Scott Wooledge on Sat Sep 08, 2012 at 11:08:22 AM PDT

          [ Parent ]

        •  PS. I didn't think you were being dismissive. (2+ / 0-)
          Recommended by:
          QDMacaw, GenXangster

          I know you!

          You're not being "oppressed" when another group gains rights you've always enjoyed.

          by Scott Wooledge on Sat Sep 08, 2012 at 11:10:25 AM PDT

          [ Parent ]

  •  The adoption portion poses a similar issue (8+ / 0-)

    to that of the Arizona case, where the state tried to take away benefits for non-married couples, but won't allow same-sex couples the option to get married.

    You can argue that it is 'rational' to allow only married couples to adopt jointly, but then you can't forbid same-sex couples the opportunity to jointly adopt by denying them access to marriage or any type of legal union that allows them to jointly adopt.

  •  Every challenge like this is a nail in the coffin (10+ / 0-)

    of anti-marriage equality bigotry as enshrined in law and state constitutions.

    I know what Mitt Romney is hiding: Mitt Romney. equalitymaine.org

    by commonmass on Sat Sep 08, 2012 at 09:47:58 AM PDT

  •  i'm not a legal expert, but about your question... (3+ / 0-)
    Recommended by:
    Scott Wooledge, Flying Goat, HeyMikey
    Question: Can legal experts tell me if it's common for judges to offer counsel plaintiffs on legal strategy? Or are both these situations unusual?
    a few years back i was in court trying to get child support for my first son. child support enforcement was helping me get the initial order changed, in addition to getting garnishments ordered. my first husband was self employed at the time, and he was pretending he had little income and lots of expenses.

    to make a long story short, one of the things i gave the judge was the info on the houses my ex husband had just bought and sold- he had recently purchased a $585,000 house. it was almost twice what he just sold his house for. he was upgrading and not downsizing, and i thought this would show he had more income than he was claiming. (on the court paperwork he left the income info blank, but wrote down a ton of expenses.)

    the judge had several choices of what amount of support to order, and he ordered the highest amount. one amount was the existing order. one amount was based on the prior year's tax return from my ex husband. the other amount was what the child support enforcement case worker came up w/ when she took all the expenses my ex claimed on the court's form. she worked under the assumption he was able to pay those expenses. it was a higher # than what she came up w/ from the tax return.

    the judge told me it would be in my best interest to have a lawyer help me with financial discovery and come back. i remember him saying he did not believe the documents before him were portraying an accurate picture, and he wanted me to come back with a lawyer. he said he wanted to make it a temporary order, but just in case i was unable to get back soon he would not make the order temporary. he was very nice.

    i thought he was going above and beyond with me. the lady from child support enforcement said the judge didn't have to tell me any of that.

    "...i also also want a legally binding apology." -George Rockwell

    by thankgodforairamerica on Sat Sep 08, 2012 at 10:01:42 AM PDT

    •  That's a different kettle of fish. (0+ / 0-)

      Telling somebody to get a lawyer to help with a routine but complicated case (no insult intended, but your case sounds routine) is a different thing entirely from telling a well-represented party to expand her claim in a case with national implications for millions of people.

      If that's true, I expect Michigan will move to have this judge taken off the case, and I wouldn't be surprised if the motion is granted.

      "The true strength of our nation comes not from the might of our arms or the scale of our wealth, but from the enduring power of our ideals." - Barack Obama

      by HeyMikey on Sat Sep 08, 2012 at 02:15:52 PM PDT

      [ Parent ]

      •  State of Michigan is going the dismissal (1+ / 0-)
        Recommended by:
        HeyMikey

        route, for now. Are you certain that's grounds for removal?

        I am fairly certain I am remembering correctly Karen Golinski's judge in the 9th Circuit district dismissed her case, but suggested she might have cause via a different legal strategy. One her counsel eventually adopted and prevailed with.

        You're not being "oppressed" when another group gains rights you've always enjoyed.

        by Scott Wooledge on Sat Sep 08, 2012 at 02:28:11 PM PDT

        [ Parent ]

        •  Sounds very strange to me. (1+ / 0-)
          Recommended by:
          Scott Wooledge

          Dismissal is an utterly routine motion. Just a claim that even if all the facts the plaintiffs allege are true, they don't show any legal violation. Nothing to do with the judge.

          Difficult for me to imagine a judge telling one side in a case what legal arguments they ought to make. Maybe some rinkydink judge in municipal court, but not a US District Court judge. That's the big leagues.

          "The true strength of our nation comes not from the might of our arms or the scale of our wealth, but from the enduring power of our ideals." - Barack Obama

          by HeyMikey on Sat Sep 08, 2012 at 07:49:04 PM PDT

          [ Parent ]

          •  I doubt they can get a dissmissal (1+ / 0-)
            Recommended by:
            HeyMikey

            these days. Too much legal water under the bridge on this topic now for any clear thinking judge* to agree there's no basis for the lawsuit.

            *Homphobia obviously robs many jurists of the ability to think clearly, but sounds like this couple found a judge that may not be an issue with.

            You're not being "oppressed" when another group gains rights you've always enjoyed.

            by Scott Wooledge on Sun Sep 09, 2012 at 12:43:45 PM PDT

            [ Parent ]

            •  I dunno. (0+ / 0-)

              I think if they have to go to trial, the good guys win. If the bad guys have any chance at all, it's probably on pure legal grounds, meaning subject to dismissal.

              But I could be wrong.

              "The true strength of our nation comes not from the might of our arms or the scale of our wealth, but from the enduring power of our ideals." - Barack Obama

              by HeyMikey on Sun Sep 09, 2012 at 08:13:19 PM PDT

              [ Parent ]

  •  Ugh. I'm scared of lawsuits like these. (0+ / 0-)

    DOMA is on shaky grounds and I wholeheartedly support those challenges.  But I'm nervous about general marriage equality cases.  I just don't see the SC making that leap.  Let's see how the cases before the court now play out.

    One should no more deplore homosexuality than left-handedness. ~Towards a Quaker View of Sex, 1964 (Proud left-handed queer here!) SSP: wmlawman

    by AUBoy2007 on Sat Sep 08, 2012 at 02:43:40 PM PDT

    •  Some of the right wing anti-equality arguments (2+ / 0-)
      Recommended by:
      QDMacaw, Scott Wooledge

      can be stood on their heads to support the freedom to marry (see my comment below).

      The fact is that allowing gay and lesbian couples to marry results in stable relationships and stable households for children to be raised in. There are other arguments, normally used to deny us our rights, that could be turned around and used to support them. In other words, while we may cringe at conservative justifications for marriage equality, they may turn out to be very useful in the long run. Good lawyering can accomplish that.

  •  "Think of the children!!!!" (2+ / 0-)
    Recommended by:
    QDMacaw, Scott Wooledge

    When some hater raises this scary issue, the best response will be: "We did. We thought of the children. We want the children of gay and lesbian parents to have the best possible environment. We want them to have a stable household. And that's why we support the marriage equality. FOR THE CHILDREN."

    •  An argument from Prop 8.... (1+ / 0-)
      Recommended by:
      sfbob

      "Think of the children!"

      My answer was "I can name on child who is demonstrably harmed by the fact that her lesbian parents cannot marry. She has no health insurance.  Name  a child that would be demonstrably harmed by this couple getting married."

      Cue argument by invocation of false experts.

      It made my head spin, as the "think of the children" argument was normally advanced by the Catholic-affiliated organizations, while the argument for normal, traditional marriage was advanced by the Mormons.  

      It was a surreal time.

  •  "Families", like "Americans", is an inclusive term (2+ / 0-)
    Recommended by:
    QDMacaw, Scott Wooledge

    whether Republicans like it or not.

    "I was a big supporter of waterboarding" - Dick Cheney 2/14/10

    by Bob Love on Sat Sep 08, 2012 at 05:59:45 PM PDT

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