The fight for same-sex marriage continues

Feb 14, 2014

Today is Valentine’s Day, and Jayne Rowse and April DeBoer hope that it will be the last they spend unmarried, and without both being the legal parents of their children.

They may not have long to wait. Eleven days from now, a trial in federal court in Detroit could determine the constitutionality of the two key laws that stand in their way: Michigan’s constitutional ban on same-sex marriage, and Michigan’s adoption code, which prevents any two unmarried people from jointly adopting a child.

Ten years ago this would have been a national sensation. Today, the question may be: Is this trial really necessary? Our legal system functions largely on precedent. Most of the time, judges look to other legal decisions as guides for how they should rule. In this case, the train is leaving the station at incredible speed.

Last night, a federal judge in Virginia ruled that state’s ban on same-sex marriage unconstitutional. U.S. District Judge Arenda Allen said:

“Government interests in perpetuating traditions … and favoring one model of parenting over others must yield to this country’s cherished protections that ensure the exercise of the private choice of the individual citizen regarding love and family.”

Two days ago, another federal judge in Kentucky ordered that deep red state to recognize same-sex marriages performed in the 17 states where they are now fully legal. Last summer, the U.S. Supreme Court struck down California’s anti same-sex marriage law. The lower court rulings will all be appealed.

But the only remaining question seems to be whether the high court will allow individual states to ban same-sex marriage at all, or find that marrying who you want is a right that no state can deny.

Last fall, attorneys for April DeBoer and Jayne Rowse were hopeful Judge Friedman would just strike down Michigan’s gay marriage ban, but instead he sent the case to trial.

Originally, this wasn’t a case about marriage at all. Rowse and DeBoer are two nurses who jointly fostered and loved three special-needs babies.

When they found they couldn’t adopt the children jointly, one adopted two, the other the third. But then they realized that if something happened to one of the partners, the survivor would have no parental right to that woman’s children. That’s why they sued.

But U.S. District Judge Bernard Friedman suggested they broaden the case to challenge Michigan’s same-sex marriage statute as well. Based on the other recent rulings, it is highly unlikely that Michigan’s marriage ban has a chance of surviving.

Yet Bill Schuette, Michigan’s flamboyant attorney general, intends to wage a massive battle against same-sex marriage, at taxpayer expense. The attorney general claims the state has a vested interest in “regulating sexual relationships,”’ so that they benefit rather than harm society.

It might be hard to see how legally recognizing and protecting the bond between April and Jayne and the family they made would harm society, but that’s what this trial will decide.

Half a century ago, there were people who thought our democracy would be destroyed if black people won the right to stay in any hotel they wanted. I remember those days, and suspect that a half century from now, people will say of same-sex marriage bans, “what were they thinking?’