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to Section One | to Arts & Entertainment
posted Friday, July 5, 2013 - Volume 41 Issue 27
Federal judge OKs Michigan marriage suit - Lesbian couple says state ban is unconstitutional
Section One
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Federal judge OKs Michigan marriage suit - Lesbian couple says state ban is unconstitutional

by Mike Andrew - SGN Staff Writer

A federal district judge in Michigan ruled on July 1 that a Lesbian couple may challenge their state's ban on same-sex marriage.

Judge Bernard Friedman turned down a motion by attorneys for the state to dismiss the suit, saying that 'plaintiffs are entitled to their day in court and they shall have it.'

The couple, Jayne Rowse and April DeBoer, charge that the state's adoption laws and its marriage law violate their equal protection rights under the 14th Amendment to the U.S. Constitution.

Rowse and DeBoer live together as a couple in a home they own jointly, but are barred from marrying under an amendment added to the Michigan state constitution in 2004. Both have children, but they are forbidden to adopt each other's children because only single people or married couples may adopt.

The couple originally sued to overturn the state adoption law, but later amended their suit to include the marriage amendment as well.

DOMA DECISION CITED
In his ruling, Judge Friedman cited the U.S. Supreme Court decision striking down Section 3 of DOMA.

'Plaintiffs' equal protection claim has sufficient merit to proceed,' he wrote. 'The United States Supreme Court's recent decision in United States v. Windsor, No. 12-307 (U.S. Jun. 26, 2013), has provided the requisite precedential fodder for both parties to this litigation. Plaintiffs are prepared to claim Windsor as their own ... And why shouldn't they? The Supreme Court has just invalidated a federal statute on equal protection grounds because it 'place[d] same-sex couples in an unstable position of being in a second-tier marriage.' (Id., slip op. at 23.)

'Moreover, and of particular importance to this case, the justices expressed concern that the natural consequence of such discriminatory legislation would not only lead to the relegation of same-sex relationships to a form of second-tier status, but impair the rights of 'tens of thousands of children now being raised by same-sex couples...'

Friedman added that the state's attorneys will likely point to the parts of the DOMA decision that uphold states' rights on the issue of same-sex marriage.

POTENTIAL SIGNIFICANCE
While U.S. Supreme Court Justice Anthony Kennedy cited the Fifth Amendment in his majority opinion in the DOMA case, plaintiffs in the Michigan case rely on the 14th Amendment, which says in part that 'No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.'

A federal court decision based on the 14th Amendment would therefore have more sweeping application than the Supreme Court's decision in the Windsor case, because it would imply that no state has the right to abridge the rights of same-sex couples to marry.

Friedman announced that he will set a trial date for the suit at a further hearing, to be held July 10.

A May 2013 Glengariff Group poll of registered Michigan voters showed that 57% now favor marriage equality, with only 38% opposed. The anti-equality amendment passed in 2004 with 59% of the vote. Atlantic Wire has rated Michigan the second most likely state to pass marriage equality, after New Jersey.

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