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.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.
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.
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.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 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.
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.