September 4, 2012
By Jacob Combs
Last week, Scottie mentioned in a news round-up that a George W. Bush-appointed judge had encouraged a Michigan lesbian couple to challenge the state’s marriage equality ban, and I thought it’d be worth revisiting in a little more detail as we come back from the holiday weekend. Jayne Rowse and April DeBoer, who together are raising three adopted children, have been seeking to adopt their three children together, with all the recognitions of a two-parent family. Under Michigan law, only one of the women can be each child’s mother, rendering them essentially single parents in the eyes of the law.
According to The New Civil Rights Movement, which has been covering the couple’s story, Michigan has pushed to dismiss the case, with the state arguing that Jayne and April were “trying to do an end run around the state constitution” and that they were only “speculating” that adopting their children as a couple would provide a more beneficial situation for their family than adopting under the law’s current restrictions. The couple’s lawyer, Robert Sedler, argued that Michigan law allows the two women to each adopt children separately, and that current law discriminates against children growing up in same-sex families.
In an unexpected ruling, however, District Court Judge Bernard Friedman, an appointee of George W. Bush, encouraged the women to expand the scope of their lawsuit to challenge the very constitutionality of Michigan’s constitutional amendment that prevents them from jointly adopting and prohibits marriage equality. ”I don’t want to push them into something they don’t want to do,” the judge said to lawyers representing both sides in the case, and gave the couple ten days (from August 29) to decide whether or not they wish to expand their argument. If they do not, he will issue a ruling on Michigan’s motion to dismiss.
There are currently three marriage equality cases making their way through the courts in the United States: the Prop 8 case, which is up for possible consideration at the Supreme Court, the Nevada case Sevcik v. Sandoval, which will being considered by a district court in November, and the Hawaii case Jackson v. Abercrombie, in which a district court judge issued a ruling upholding the state’s lack of marriage equality. That decision is expected to be appealed to the Ninth Circuit.
Of course, Michigan is a very different state than the other three where marriage equality is being considered by the courts. California and Nevada both allow domestic partnerships for gay couples; Hawaii allows civil unions. Michigan allows gay and lesbian couples no legal recognition for their relationships, and is one of only three states that has explicit prohibitions against allowing gay couples to adopt. Michigan also has no protections for hate crimes based on sexual orientation or gender identity, nor any employment protections outside of the state government.
Because of that, if Jayne and April were to expand their case to take on the state’s anti-marriage equality position, they would have to make a very different argument than lawyers have made in any other state. Nonetheless, it would be an excellent opportunity to take on the issue of marriage equality in a state that does not allow for civil unions or domestic partnerships. We’ll have more coverage of the case here at P8TT as it moves forward with Judge Friedman.