State attorney general responds to challenge to same-sex marriage ban

Jul 29, 2013

The state attorney general’s office has filed its response to a lesbian couple’s claim that Michigan’s marriage and adoption laws discriminate against their children.

Jayne Rowse and April DeBoer are suing the state to overturn the ban on same-sex marriage. The amendment to the Michigan Constitution was approved by voters in 2004.

Rowse and DeBoer originally sued to win rights to jointly adopt the three children they’re raising together. U.S. District Court Judge Bernard Friedman suggested they should expand their challenge to include the marriage amendment. So they filed a 34-point amended complaint last September. It says the marriage amendment violates their family’s rights to equal protection.

Attorney General Bill Schuette
Attorney General Bill Schuette
Credit Photo courtesy of Michigan's Attorney General office / michigan.gov

Expanding the scope of the lawsuit upset social conservatives like Gary Glenn of the American Family Association. He helped draft the amendment and was a leader of the campaign to adopt it.

“We believe it’s the duty of the governor of this state and the attorney general to enforce state law and uphold and defend the vote of the people and our state constitution,” Glenn said. “Even in the face of a decision by a federal judge who presumes to take it upon himself to have the power to overrule millions of Michigan voters.”

Gay rights activists were equally upset by the state’s response, which says equal protection rights don’t apply to same-sex relationships. The state’s brief also says Michigan has a legitimate interest in promoting “responsible natural procreation,” “raising children in a home environment with a mother and a father,” and the “benefit of having a role model of both sexes.”

April DeBoer says the state is essentially arguing that her family is not a family in the eyes of the law. She says they are looking forward to the court hearing on October first.

“Obviously, we are hoping for the judge to hear the arguments and decide that we deserve,” DeBoer said. “Our kids deserve the same civil rights as everybody else.”

The disposition of this case will depend a lot on how high a bar Judge Friedman sets for the state to defend its marriage and adoption laws, and for DeBoer and Rowse to overturn them.

Friedman has to decide what standard to apply because the U.S. Supreme Court left it an open question in its gay marriage rulings earlier this summer.  In fact, Justice Antonin Scalia complained about that in his dissent to the decision to overturn the federal Defense of Marriage Act.

It’s a critical point, and both sides will be watching closely to see how the judge rules on it.

Brian Kalt is a constitutional law professor at the Michigan State University School of Law.

The state wants the judge to use a standard called the “rational basis” test. Kalt says that would make it easier for the state to argue the ban is not illegal discrimination because it would not have to delve into the reasons behind the amendment.

“In other words, it just has to be an acceptable reason and this law has to have something to do with that, and that’s not setting the bar very high at all,” said Kalt.

DeBoer and Rowse want the judge to use a different standard. They want him to make the state prove there is an “important and substantial relationship” between the same-sex marriage ban and a legitimate public interest.

“The government has to come up with a much better reason for this, and they have to have much better justification saying that the law actually advances that interest” said Kalt. “It’s a much tougher bar to clear in defending the law.”

Whatever Judge Friedman decides could be a crucial step in establishing how this and other gay rights cases are decided in federal courts. It’s expected that whatever he ultimately decides will be challenged in the U.S. Sixth Circuit Court of Appeals, and then to the U.S. Supreme Court, which means it could be a long time, years probably, before the legal system settles these questions.