Yesterday, Wednesday, June 26, 2013, the United States Supreme Court issued a pair of victories for lesbian and gay couples.
In in the first case, the Court ruled that the issue concerning California’s ban on same sex marriage was not properly before the Court. In so ruling, the Court left in place a California Trial Court’s decision that struck down “Proposition 8” which had passed in November, 2008 by statewide ballot and amended the State’s Constitution by providing that “only marriage between a man and a women is valid or recognized in California”. This paves the way for same-sex marriages to continue in California after a short waiting period.
In the second case, the Court struck down the Federal Defense of Marriage Act which will immediately extend benefits to same-sex couples in States that currently allow such marriages. Michigan is not one.
Michigan since 2004 has had a constitutional ban on same-sex marriages. Further, many in the lesbian-gay community consider Michigan as one of the least welcoming states. But, things change, and interestingly, there is a case pending before Detroit Federal Court Judge Bernard Friedman that many people are now watching with renewed interest. In that case, April DeBoer and Jayne Rowse, who have been together for 13 years, have 3 adopted children. Under current legislation in Michigan, only heterosexual married couples and individuals can adopt children. Accordingly, DeBoer is the legal parent of 2 of the children and Rowse is the legal parent of the third child. This means that DoBoer has no legal rights over the child adopted by Rowse, and Rowse has no legal rights over the children adopted by DoBoer. The couple want Michigan’s adoption law changed so that they can both be the legal parents of all 3 children.
This case is particularly interesting since the Judge has encouraged the couple to amend their complaint to include a request for a ban on the Michigan’s same-sex marriage law as the primary claim by the couple. With the recent United States Supreme Court’s rulings, we believe that DeBoer and Rowse will amend their complaint so that Michigan’s ban will come under new scrutiny by Federal Judge Friedman who likely will consider yesterday’s rulings when he decides the DeBoer / Rowse case. It is the US Supreme Court’s ruling on the Federal Defense of Marriage Act that makes, in our opinion, Michigan’s gay marriage ban more vulnerable. In that opinion, Justice Kennedy, writing for the majority said: “By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.” This seems particularly applicable for same-sex couples who legally marry in one state and then relocate to a state that bans such marriages.
In sum, the door is now open for striking-down the Michigan ban on same-sex marriages, and even if DeBoer / Rowse decide to limit their challenge to the adoption law in Michigan and not the same-sex marriage ban, it won’t be long before another couple in Michigan brings the claim. Whether you agree with it or not, the issue of same-sex marriage is going to be with for some time.