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Sunday, February 23, 2014

Courts - Federal trial begins Tuesday in Michigan same-sex marriage challenge

Brian Dickerson, columnist for the Detroit Free Press, has a long story today headed "Will Michigan's same-sex marriage showdown be a historical footnote?" It begins:

Just last October, when U.S. District Judge Bernard Friedman set Feb. 25 as the trial date for a legal showdown between state Attorney General Bill Schuette and a lesbian couple challenging Michigan’s constitutional ban on same-sex marriage, it looked as if DeBoer v. Snyder might become the decisive battleground in the nationwide campaign for marriage equality.

But what a difference four months has made.

While lawyers for both sides have been preparing for the trial that begins in Friedman’s Detroit courtroom this Tuesday, federal judges elsewhere have struck down all or parts of state laws banning same-sex marriage in Ohio, Utah, Oklahoma, Kentucky and Virginia.

Meanwhile, state supreme courts in New Jersey and New Mexico have rejected challenges to laws permitting same-sex couples in those states to marry.

By the time a new law permitting gay marriage in Illinois takes effect June 1, same-sex couples will be free to marry in at least 17 states. Four more states either recognize civil unions between gay couples or honor same-sex marriages consecrated elsewhere.

From later in the lengthy column:
Facing similar legal challenges, attorneys general in other states have been reluctant to defend state bans like Michigan’s. Many legal scholars believe such prohibitions are constitutionally doomed in the wake of the 5-4 ruling that U.S. Supreme Court justices issued last June in Windsor v. United States. The landmark Windsor ruling struck down the Federal Defense of Marriage Act (DOMA), which had barred the federal government from recognizing same-sex marriages even if they were consecrated in one of the states that explicitly authorizes them.

A tortured interpretation

[Michigan Attorney General Bill] Schuette contends that the Windsor ruling protects every state’s right to decide for itself who can marry within its borders. But that argument represents a willful indifference to the essence of Windsor, in which a majority of justices concluded that the primary (and constitutionally forbidden) purpose of DOMA was “to impose inequality” on gay citizens for no legitimate government purpose.

To defend Michigan’s untenable discrimination against gay people, Schuette has been reduced to arguing that Michigan’s ban on same-sex marriage serves the legitimate governmental purpose of promoting “responsible procreation.”

Never mind that many couples, heterosexual and gay, get married with no intention of having or adopting children. It’s within the state’s right to reserve marriage to heterosexuals, Schuette argues, because children have better outcomes when they have two parents of opposite genders.

The main problem with this argument — which the Windsor majority and innumerable lower court judges have already rejected — is that it flies in the face of virtually every reputable study comparing children raised by same- and opposite-sex couples.

"Opponents of Same-Sex Marriage Take Bad-for-Children Argument to Court" is the headline of a Feb. 22nd NY Times story by Erik Eckholm. The long report begins:
As they reel from a succession of defeats in courtrooms and legislatures, opponents of same-sex marriage have a new chance this week to play one of their most emotional and, they hope, potent cards: the claim that having parents of the same sex is bad for children.

In a federal court in Detroit starting Tuesday, in the first trial of its kind in years, the social science research on family structure and child progress will be openly debated, with expert testimony and cross-examination, offering an unusual public dissection of the methods of sociology and the intersection of science and politics.

Scholars testifying in defense of Michigan’s constitutional ban on same-sex marriage aim to sow doubt about the wisdom of change. They brandish a few sharply disputed recent studies — the fruits of a concerted and expensive effort by conservatives to sponsor research by sympathetic scholars — to suggest that children of same-sex couples do not fare as well as those raised by married heterosexuals.

That view will be challenged in court by longtime scholars in the field, backed by major professional organizations, who call those studies fatally flawed. These scholars will describe a near consensus that, other factors like income and stability being equal, children of same-sex couples do just as well as those of heterosexual couples.

Here is the docket in DeBoer v. Snyder as of 2-23-14.

Posted by Marcia Oddi on February 23, 2014 08:02 PM
Posted to Courts in general