Couples married on March 22 seek state recognition

Last year at this time, thousands of same sex couples were hoping that the federal government would step up and recognize their state marriages. This year, in the post-Windsor realm, the federal government will recognize legally performed same sex unions while states, like Michigan, prefer the limbo game. 

On Saturday, March 22, over 300 same sex couples were legally wed after Judge Bernard Friedman declared Michigan’s ban on same-sex marriage was unconstitutional and a violation of the 14th Amendment. Sadly, the honeymoon of equality was brief - by 6 p.m. the Sixth Circuit had issued a stay, halting any further marriages and throwing over 600 individuals into legal limbo. 

Governor Snyder has contended that although the marriages performed were legal, the state is unable to recognize them until either the stay is lifted or the case is ultimately decided on appeal. This statement and decision by Governor Snyder essentially invalidated and repealed all of the marriages that were performed on March 22. 

On March 28, U.S. Attorney General Eric Holder, issued a statement that the marriages were legal in the federal government’s eyes.

I have determined that the same-sex marriages performed last Saturday in Michigan will be recognized by the federal government. These families will be eligible for all relevant federal benefits on the same terms as other same-sex marriages. The Governor of Michigan has made clear that the marriages that took place on Saturday were lawful and valid when entered into, although Michigan will not extend state rights and benefits tied to these marriages pending further legal proceedings. For purposes of federal law, as I announced in January with respect to similarly situated same-sex couples in Utah, these Michigan couples will not be asked to wait for further resolution in the courts before they may seek federal benefits to which they are entitled. 

Last June’s decision by the Supreme Court in United States v. Windsor was a victory for equal protection under the law and a historic step toward equality for all American families. The Department of Justice continues to work with its federal partners to implement this decision across the government. And we will remain steadfast in our commitment to realizing our country’s founding ideals of equality, opportunity, and justice for all.

Yesterday, April 14, the ACLU of Michigan filed a suit on behalf of eight same sex couples. The suit seeks an order to force the state to legally recognize the 300 same sex marriages performed on March 22.  The complaint can be found here. (H/T to Equality Case Files for posting this link so quickly!)

For those of you who don’t want to read the complaint (although I highly recommend that you do), it names Governor Snyder, Michigan Department of Human Services Director Maura Corrigan, Michigan Office of Retirement Services Director Phil Stoddard, and Michigan Department of Community Health Director James Haveman.

The complaint lays out a narrative of what happened prior to the suit — the DeBoer case and disposition, the 300 marriages, the stay, Snyder’s statement, and US Attorney General Eric Holder’s statement. The complaint then describes each of the plaintiffs and their relationships. 

Unsurprisingly, these are people who have not entered into marriage lightly — they have been together for years, have supported each other, have raised families together — they have taken on all of the responsibilities that a marriage brings and simply ask for some of the rights that are granted with the relationship.

Marsha Caspar and Glenna DeJong — the first same sex couple married in Michigan and named plaintiffs in the suit — are described as being “hurt and dumbfounded” by the State’s decision to invalidate the marriages. These women have been together for 27 years and are facing some very real issues. Marsha suffers from an autoimmune disease and has been hospitalized in the past. The women fear that if Marsha is admitted to a hospital that doesn’t recognize Glenna as her spouse, that the two could be barred from seeing each other. 

“They could not understand how their marriage could be legal, yet they could not be afforded any rights or recognition. As the couple publicly stated at the time, “It’s akin to saying ‘Rick Snyder, you were elected governor, but we’re not giving you an office or letting you serve.’ There is no in-between. We are not a ‘skim milk marriage’ as Supreme Court Justice Ruth Bader Ginsburg has so poignantly identified.”

Plaintiffs Clint McCormack and Bryan Reardon have been together for 22 years and are raising thirteen (yes, you read that correctly THIRTEEN) children. Six of the children have been jointly adopted by Clint and Bryan in the state of New Jersey. Four of the children were adopted by Brian alone in states that do not permit second parent adoption (like Michigan). Three of the children were placed in the couple’s care as foster children by Michigan’s Department of Human Services (DHS). Bryan and Clint plan to adopt their foster children if the biological parents’ rights are terminated. 

During the DeBoer trial, the State repeatedly asserted what I call the “won’t SOMEONE think of the children” argument. That is, they said that children would just be better off raised by married, opposite sex, biological parents. This argument was soundly rejected and the Court found that children raised by same sex parents showed no difference. The Court also found that providing marriage equality to same sex couples would provide more stability for these families. 

This sentiment was echoed in this complaint. Bryan and Clint wished to have their relationship recognized so that “their children will not suffer the stigma, humiliation, and emotional confusion of having only one legally recognized parent in a two-parent family.” The stigma and confusion is real — their fifteen-year-old son was “emotionally devastated when he learned that his other father, Clint, is not recognized by law as his parent.”

The complaint lists two causes of action — substantive due process and equal protection. The substantive due process arises from the Fourteenth Amendment which provides that no State “shall deprive any person of life, liberty, or property, without due process of law.” Plain english version: the government can’t mess with your fundamental rights. These fundamental rights include the right to marry, establish a home, bring up children, and make personal decisions relating to procreation, contraception, family relationships, life partnerships, and education. 

This isn’t new law — it’s pretty well settled that the government can’t intrude on these issues. Once a constitutionally protected relationship (like a marriage) takes place, it acquires even more protections under the Due Process clause. These protections and benefits cannot be stripped away by a legislative or judicial act. That means that even if the legislature were to declare the marriages illegal, or the DeBoer case were to be overturned by the Sixth Circuit, the 300 marriages performed on March 22 were, are, and will remain intact and are entitled to all the rights and privileges that come with marriage. 

The Equal Protection claim also arises under the Fourteenth Amendment. Equal Protection claims occur when the State treats one group of people, but no other groups of people, differently in a disfavored manner. In this case, when the State refused to treat all married couples alike and singled out the same-sex couples by depriving them of the rights and privileges associated with marriage, it violated the Equal Protection Clause. 

The complaint closes (as all complaints do) with a prayer for relief — that is, what the plaintiffs want from the state. Spoiler alert: the plaintiffs aren’t asking for magical ponies or a gajillion tons of gold. They’re asking for basic rights. The plaintiffs want the Court to take the following actions:

  • Declare that the Michigan Marriage Amendment (and any other associated statutes) are unconstitutional and do not impact the marriages of the 300+ couples who were legally married on March 22;
  • Declare that the State was wrong in its refusal to recognize the marriages of same sex couples that took place on March 22;
  • Declare that the State’s refusal to recognize the March 22 marriages violated those couples’ due process and equal protection rights as guaranteed by the Fourteenth Amendment to the United States Constitution;
  • Enjoin (read: STOP) the State from enforcing the Michigan Marriage Amendment against couples who were legally married in Michigan and whose marriages were valid at the time they were entered into (read: same sex couples married in other jurisdictions with marriage equality);
  • Make the State recognize that all of the same sex marriages that were entered into in Michigan on March 22 as well as the same sex marriages performed in other jurisdictions with marriage equality as legal and valid marriages. This count also asks the State to grant these legally married couples all the benefits, rights, and privileges given to other legally married couples and their families under Michigan law;
  • Award the Plaintiffs’ attorney fees and court costs. 

Note that the prayer addresses marriages from other states. That means if you’ve been married in California, Connecticut, Delaware, Hawaii, Iowa, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, Vermont, Washington, or Washington D.C., this suit is fighting for your right to be recognized as a legally married couple here in Michigan. 

The fight is still on, people, and marriage equality is gaining serious momentum here in Michigan. 

Sometimes, when the ACLU files a case on behalf of the gays, I imagine a hostile press conference in which the attorney throws down a la this pony. I realize that Jay Kaplan, the ACLU’s wonderful attorney for these matters, is a pretty nonviolent guy and I’m pretty sure he’s not a brony but nonetheless…it amuses me so I’m sharing it with all of you.


On hold.

On Friday, Judge Friedman struck down the marriage ban. On Saturday morning, just after 8 a.m., Ingham County Clerk Barb Byrum conducted the first same-sex marriage ceremony in the state. Glenna DeJong and Marsha Caspar have been together for 27 years.  

*Photo courtesy of East Lansing Mayor Nathan Triplett

By 9 a.m., three other counties - Oakland, Muskegon, and Washtenaw - began issuing licenses to same sex couples seeking marriage. In Washtenaw, the line was reportedly out the door and around the corner. In Oakland County, Clerk Lisa Brown started performing mass ceremonies. All in all, 323 couples were married on Saturday.

The Attorney General’s office was quick to request a stay and file an appeal with the Sixth Circuit. Given other Courts’ actions, a stay seemed inevitable and it was only a matter of time before the licenses were halted. Many were hopeful that the Court wouldn’t act until Monday or Tuesday, giving more couples the opportunity to sprint to their respective county clerk’s offices and apply for a license. 

Sadly, just before 6 p.m. on Saturday, the Sixth Circuit issued an order temporarily staying Judge Friedman’s order until Wednesday, March 26. 

So what happens now? Well, the ball is in the Sixth Circuit’s court (no pun intended) and they can either uphold Judge Friedman’s decision (at which point the AG will likely appeal to the SCOTUS) or overturn Judge Friedman’s decision (at which point the plaintiffs will appeal). 

In the meantime, the couples that married on Saturday are in limbo. The State says they will not recognize the unions. Barb Byrum and Nathan Triplett have sent a memo to US Attorney General Eric Holder asking him to declare that the marriages performed prior to the stay “will be recognized as lawful and considered eligible for all relevant federal benefits.” Read the letter here.

For those of you who prefer visual learning, here are two incredibly helpful infographics. These infographics were created by Cooley Law professor and MI Pride Chairwoman, Emily Horvath. Thanks, Emily!


Sign on to the petition urging Governor Snyder and AG Schuette to drop the appeal! 

As of this writing, over 10,324 individuals had signed on. Add your name!



On Friday, March 21st, just after 5:00 p.m., the Judge Friedman finally issued his decision in the DeBoer v. Snyder case. As the title of this post indicates, the ban has been struck down as unconstitutional. The relevant part of the ruling, the end, reads:

"In attempting to define this case as a challenge to “the will of the people,” state defendants lost sight of what this case is truly about: people. No court record of this proceeding could ever fully convey the personal sacrifice of these two plaintiffs who seek to ensure that the state may no longer impair the rights of their children and the thousands of others now being raised by same-sex couples. It is the Court’s fervent hope that these children will grow up “to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” Today’s decision is a step in that direction, and affirms the enduring principle that regardless of whoever finds favor in the eyes of the most recent majority, the guarantee of equal protection must prevail.”

That’s a pretty big deal, you guys. 


BUT WAIT, THERE’S MORE! In his opinion, Judge Friedman ripped apart the State’s rationale for defending the MMA and the witnesses that were paraded through the courtroom.

The Court asked the parties to address a narrow issue: whether the MMA survived rational basis review. In order to survive rational basis scrutiny (the lowest level of scrutiny), the law must be rationally related to some sort of legitimate governmental interest. 

The State opted to pick the old “think of the children” argument and stated that the State had an interest in promoting unions that would bear the fruit of biological children. It takes one man and one woman to breed…erm, create and bear a child and therefore that’s the optimal union for a marriage. 

The Plaintiff’s first witness, David Brodzinsky, a psychologist, testified that in his years of experience there was “no discernible difference in parenting competence between lesbian and gay adults and their heterosexual counterparts.” There is NO credible body of research that supports the idea that same-sex parents provide a deficient family model for children. Brodzinsky’s testimony was given considerable weight and was deemed credible by the Court. The Court did not feel that Brodzinsky’s use of convenience samples lessened his credibility. 

As Brodzinsky and others testified, such studies are the “bread and  butter” of many areas of social science research, and the results of such studies are valid and reliable if, as occurred here, they are consistently replicated by different researchers studying different sample groups.” p. 6

The Plaintiff’s second witness, sociologist Michael Rosenfeld, echoed a lot of Brodzinsky’s testimony regarding outcomes for children raised by same-sex parents. In regards to couple stability, despite earlier findings that indicated that same-sex couples were more likely to break up, Rosenfeld found that as legal recognition of their relationships became more common, stability increased. That is, puttin’ a ring on it makes it less likely that a couple is going to break up. 

Rosenfeld also responded to criticisms of his study (note: two of his three critics also served as the State’s witnesses - Douglas Allen and Joseph Price). His critics claimed that Rosenfeld’s study unnecessarily excluded children from the sample population that should have been included. In reality, Rosenfeld was using controls for his study and removing instability factors. The Court found Rosenfeld’s testimony “highly credible” and gave it “great weight.”

Moreover, the Court pointed out that the State did not dispute Rosenfeld’s statement:

"Every major professional organization in this country whose focus is the health and well-being of children and families has reviewed the data on outcomes for children raised by lesbian and gay couples,including the methods by which the data were collected, and have concluded that these children are not disadvantaged compared to children raised in heterosexual parent households. Organizations expressing support for parenting, adoption, and/or fostering by lesbian and gay couples include (but are not limited to): AmericanMedical Association, American Academy of Pediatrics, AmericanPsychiatric Association, American Academy of Child and AdolescentPsychiatry, American Psychoanalytic Association, AmericanPsychological Association, Child Welfare League of America, National Association of Social Workers, and the Donaldson Adoption Institute.” 

The Court also found law professor Vivek Sankaran credible and gave his testimony great weight. Professor Sankaran testified about the “legal limbo” that children of same-sex parents face in Michigan if the “legal” parent dies or becomes incapacitated. Despite guardianship agreements, wills, and overwhelming evidence of a parent’s intent that their child be raised by the non-legal parent in the case of death or incapacitation, the juvenile system is not required to recognize these agreements.

In what was incredibly difficult testimony to hear, Professor Sankaran took the Court through what would happen if a legal parent died and the non-legal parent experienced delays in pursuing guardianship of the child. The Michigan Department of Human Services (“DHS”) could initiate a child neglect investigation because the child would be left for at least some period of time without a legal guardian. Sankaran, Tr. 2/26/14 pp. 120-121. At that point, DHS could remove the child from the non-legal parent’s custody and that parent would not be a party to the proceeding. The non-legal parent would have to seek their own counsel and intervene in the case in order to be heard. Then, the non-legal parent would have to become a licensed foster parent in order to obtain custody of THEIR OWN CHILD. Even at this point, Sankaran testified, the juvenile court is not required to place the child with the non-legal parent. 

A reminder here that the State’s rationale for upholding the MMA is because it’s in the best interests of the children. 

Based on Sankaran’s testimony, the Court found that, “Denying same-sex couples the ability to marry therefore has a manifestly harmful and destabilizing effect on such couples’ children.”

The plaintiffs also presented testimony from Dr. Nancy Cott, a historian who stated the MMA actually erodes the benefits that marriage has promoted. Marriage has been regulated by the government, in part, to promote stable households and provide families with benefits via Social Security, health care benefits, etc.  ”Yet, by effectively foreclosing same-sex couples from obtaining these benefits, the MMA undermines the very aim of one of the central historical bases for civil marriage, namely, family stability.”

Dr. Cott also testified that inability to procreate is not, nor has it ever been, a reason to bar a person from marrying in the State of Michigan (or, for that matter, any state). Infertility is also not grounds for divorce or annulment. Dr. Cott was deemed highly credible and her testimony was given great weight (also, the court watchers in the rear left corner of the gallery thought she was a total BAMF but I digress).

The State of Michigan still does not require proof of fertility or even a desire to have children in order to obtain a marriage license. Oakland County Clerk Lisa Brown testified that Clerks may not inquire into a couple’s stability, criminal record, ability to procreate, parenting skills, or even common sense in order to issue a marriage license. If you’re over the age of 18 (or 16 with parental consent), you’re in the right place (if you reside in Michigan you must apply in the county where you reside), and you’re not currently married, congratulations! You can get a marriage license. 

At around page 11 of the 31 page opinion, Judge Friedman starts in on the State’s case. First up, the testimony of discredited sociologist Mark Regnerus. Y’know…this guy:


The Court discusses the fact that even Regnerus himself recognized the limitations of his study. The study that has been ripped to shreds by the American Sociological Association. 

The Court finds Regnerus’s testimony entirely unbelievable and not worthy of serious consideration.”

The study was “hastily concocted” by a third party funder (NOM!) The Court found Regnerus’s claim that the funder’s request and the timing of the study did not affect the outcome UNBELIEVABLE. 

Whatever Regnerus may have found in this “study,” he certainly cannot purport to have undertaken a scholarly research effort to compare the outcomes of children raised by same-sex couples with those of children raised by heterosexual couples. It is no wonder that the NFSS has been widely and severely criticized by other scholars, and that Regnerus’s own sociology department at theUniversity of Texas has distanced itself from the NFSS in particular and Dr. Regnerus’s views in general and reaffirmed the aforementioned APA position statement.” 

At this point in the opinion, I imagine Judge Friedman dropping the mic, walking off stage and then coming back for another encore performance. 

The Court briefly discussed the testimony of the State’s remaining witnesses - Douglas Allen, Loren Marks, and Joseph Price. Allen and Price’s study - the study that tried and failed to debunk Rosenfeld’s study - was deemed to be flawed. The Court found Marks’s testimony to be largely unbelievable:

"Marks, as well as Price and Allen, faulted many…studies for their small sample sizes, the non-random methods used to obtain subjects, and the fact that some lacked heterosexual comparison groups, among other criticisms. Marks, Price and Allen all failed to concede the importance of “convenience sampling” as a social science research tool. They, along with Regnerus, clearly represent a fringe viewpoint that is rejected by the vast majority of their colleagues across a variety of social science fields.”

Conclusions of Law

The Court finds that the MMA does not advance any conceivable legitimate state interest and therefore impermissibly discriminates against same-sex couples in violation of the Equal Protection Clause of the Fourteenth Amendment. 

The opinion then lays out a beautiful analysis of an Equal Protection argument. We start with Cleburne v. Cleburne Living Center, Inc. which held that the Equal Protection Clause forbids a state from denying “to any person within its jurisdiction the equal protection of the laws,” U.S. Const. amend. XIV, § 1, and promotes the ideal that “all persons similarly situated should be treated alike.” 

The opinion spoke of the different levels of scrutiny a Court may apply in Equal Protection analysis and mentioned the fact that some Courts have applied heightened scrutiny when reviewing same sex-marriage bans. See Windsor v US, 699 F.3d 169, 185 (2d Cir. 2012). However, the Court did not feel that heightened scrutiny analysis was warranted here because “the MMA does not survive even the most deferential level of scrutiny, i.e., rational basis review.” 

The Court then proceeded to analyze each of the State’s claims. Spoiler alert: the Court was not impressed by the State’s arguments.

1. The MMA Endorses the Optimal Environment for Rearing Children

TL;DR version:

  • The Plaintiff’s experts proved that there is no difference in outcomes for children raised by same-sex parents.
  • The State doesn’t require opposite sex couples seeking a marriage license to prove their fertility or desire to have children. Heck, even child abusing, sterile, drug addicts who like to make fun of puppies are able to get licenses if they meet the age, residency, single qualifications.
  • The MMA actually fosters MORE instability and destabilzation for children. 
  • The State doesn’t explain why, if an optimal environment is so important to raising children, sub-optimal groups are not prohibited from getting married (like the child abusing, drug addict, puppy teasers mentioned above).
  • The Court also just doesn’t buy this bull hooey because the goal simply isn’t advanced by forbidding same-sex couples from marrying.

2. Proceed with Caution (read: those gays are just too new)

When constitutional rights are denied, the Court wants to rectify the situation immediately. 

3. Tradition and Morality (cue the Fiddler soundtrack)

  • Tradition alone does not satisfy rational basis review. See Heller v Doe09 U.S. 312, 326 (1993).
  • Moral disapproval is also not enough to satisfy rational basis review.
  • Traditional views + discomfort with the gays does not equal a legitimate state interest.

4. Federalism

The State contended that under Windsor, Michigan had a right to define marriage as between one man and one woman. The Court rejected this view stating,

"The state defendants gloss over one important caveat. While the justices recognized the state’s expansive power in the realm of domestic relations, they also noted that this power has its limits. Writing for the majority, Justice Kennedy stated that domestic relations “laws defining and regulating marriage, of course, must respect the constitutional rights of persons … but, subject to those guarantees, regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the states,” and that “[t]he states’ interest in defining and regulating the marital relation [is] subject to constitutional guarantees …” 

The Court also rejected the idea that because the law was passed by voter referendum that it had an “air of heightened legitimacy.” Again, if a law is unconstitutional and is depriving people of their rights, the Court is under an obligation to rectify the situation.

Finally, the Court laid it all out. I realize that you read this part of the case already but it’s so damn good that I’m posting it again:

In attempting to define this case as a challenge to “the will of the people,”state defendants lost sight of what this case is truly about: people. No court record of this proceeding could ever fully convey the personal sacrifice of these two plaintiffs who seek to ensure that the state may no longer impair the rights of their children and the thousands of others now being raised by same-sex couples. It is the Court’s fervent hope that these children will grow up “to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” Today’s decision is a step in that direction, and affirms the enduring principle that regardless of whoever finds favor in the eyes of the most recent majority, the guarantee of equal protection must prevail.

No stay was ordered and there was much rejoicing throughout the Mitten.

At this point, the State has requested an emergency stay from the Sixth Circuit but the motion has not been granted. As of this writing, two counties in Michigan (Muskegon and Washtenaw) will begin issuing marriage licenses tomorrow morning at 9 a.m. Other county clerks will be issuing licenses on Monday morning at 8 a.m. 

Rumor has it that the window will be a brief time period but that some couples will be able to get married. 


How Judge Friedman could rule and what that means

There have been a lot of questions about what could happen in the DeBoer v. Snyder case. Fortunately, we’ve got an incredible advocate in Jay Kaplan over at the Michigan ACLU. He’s put together an FAQ about all the different what ifs. Check it out HERE.


Day 9: Closing Part III - Breaking news: Moms and Dads are Different

There’s a saying in the law, “How to win a case in court: If the law is on your side, pound on the law; if the facts are on your side, pound on the facts; if neither is on your side, pound on the table.”

The State pounded the table a lot in the past two weeks. Today was no different. Assistant AG Kristin Heyse started by telling the Court not to get lost in the emotion of the case. 

Let’s review some basic law before we dive into the closing statements. The State has repeatedly asked the Court to apply rational basis standard of review. Under rational basis, a court will uphold a law if it is rationally related to a legitimate government purpose. This is the lowest standard of review. The challenger, here the DeBoer-Rowse family, has the burden of proving that there is no conceivable legitimate purpose for the law or that the law is not rationally related to the purpose.

The State’s closing argument opened with the argument that because reasonable people can disagree on whether same sex marriage is a good idea, the ban should be upheld. Ah yes, I love it when a good vigorous debate with frenemies delays my basic fundamental rights. I find that totally reasonable. 

Heyse framed the State’s case (I’ve been pretty snarky, but I swear this is what she said):

  • It’s rational to believe that it’s a good thing for a child to have a mom and dad;
  • It’s rational to believe that a child should have both a mom and dad;
  • It’s rational to believe that the State should proceed with caution when the science of the matter is unsettled. 

The question about whether the same sex marriage ban should be struck down, the State said, is not to be answered by the Court but by the voters. Rational basis for the amendment was established when the voters voted for it…ten years ago. Because voters don’t change their minds…ever. We all know that opinions don’t change. Oh…wait.


SOURCE: This Washington Post-ABC News poll. The Washington Post. Published on March 5, 2014, 12:01 a.m

The State then returned to their “hard hitting” arguments that men and women are different, same sex marriage is too new, and change should be left to the voters. 

One of the points in the “moms and dads are important” vein that was made a few times both during the trial and during close was that “caution should be taken before eliminating moms and dads from the equation.” The State made it sound as though once marriage equality comes to Michigan, all opposite sex marriages will be broken up and everyone will get a new same sex spouse. Children will be forced to live with 2 dads or 2 moms…no ifs, ands, or buts about it. 

To be clear, this scenario will not come to fruition. You don’t have to get gay married if you don’t want to. If your marriage is in trouble right now, and that’s what’s keeping you from hopping on board with marriage equality, get some marital counseling. I assure you that same sex marriage will not affect your relationship (unless you’re already in a same sex relationship, in which case…hold on to your hat, friend).

Heyse hammered home the point that men and women are different, in case any of us forgot about it. Also, moms and dads….different. Also, moms and dads are important. Real important. Really.

She backed this up by stating that the State’s witness, Dr. Price had opined (NOTE: he opined, he didn’t prove, didn’t definitively state, just opined…as in, gave his opinion) that a married opposite sex couple who are raising their own biological child is the truly ideal situation. 

The State then moved into the “same sex marriage is too new” line of arguments. No one knows what can happen in states with same sex marriage. Sure, it’s been around for 10 years, but that’s a flash in the pan. You need more time to really study something like that. Besides, the science around “the whole subject” is just too uncertain. 

Heyse then cited the incredibly credible witness, Dr. Mark Regnerus. His study, was one of the few that had a large enough sample size to be considered legitimate. There were, however, a few pesky facts that Heyse chose not to bring up during the close. Namely, this:


The studies, nearly all of the studies that the Plaintiffs introduced were preliminary at best, according to the State. The State cited the replication of the Rosenfeld study as an example of what happens when data is actually expanded. According to the State, bigger is better. Bigger is always better - even if it means falsely inflating a sample so that it becomes meaningless, or changes the parameters of the study - bigger is always better. 

The State then returned to the point that definitive conclusions cannot be made about same-sex parenting outcomes. The State then pleaded with the Court to think about the children because no one knows if same sex marriage will hurt marriage or not. 


*Highlight of the State’s arguments

The State conceded that there’s the possibility that the studies definitively answering the questions about same sex marriage and parenting outcomes may never be done. However, that doesn’t mean that marriage equality should be granted, according to the State. Heyse said to do so would be putting the cart before the horse. To stave this off, the State suggests burning the cart and shooting the horse. <NB: The State didn’t actually suggest this>

The State closed with the “it’s too soon” refrain. The State suggested that Michigan wait until 2016 because the issue will inevitably wind up on the ballot. Because, y’know…it’s not like we’re talking about real people here or anything. It can wait. Hit the snooze button on equality. NBD.

Following the State’s closing statement, the Plaintiffs were given the opportunity to deliver rebuttal. In an understated yet bold moment, Mogill simply stated, ““There’s nothing that Ms. Heyse has said that changes the law or the facts or refutes our argument. Therefore there’s no need for rebuttal.”

So, what’s next? 

Judge Friedman will be making his decision in the next two weeks. The opinion will be posted online. 

So what can YOU do in the meantime?

Share your family’s story. Equality Michigan wants to hear from you. How would marriage equality affect your family? Send an email to marriage@equalitymi.org

Write a letter to the editor in support of marriage equality. 

Sign a petition to show your support. 


Day 9: Closing Part II - “The State has engaged in breathtaking hypocrisy.”

Lisa Brown, the Oakland County Clerk, has been an unwilling defendant in the case. During her testimony on Monday, she stated that she would follow the Court’s orders and would obey the law. 

Her attorney, Michael Pitt, delivered a powerful closing statement today. He restated that Clerk Brown will uphold both the U.S. and Michigan Constitutions and that she follows the orders of the Court, not the Governor or Attorney General Schuette. 

If the ban on same sex marriage were lifted, Brown would immediately issue licenses to same sex couples wishing to get married. She is ready now and will issue licenses the moment the ban is struck down. 

Pitt cited Lawrence v. Texas opinion and noted that he had been in the courtroom when the Supreme Court heard the case. He saw the sense of relief on the justices’ faces as the verdict came down that the tide was turning. He felt that Michigan was in a similar situation.

He then turned to the fundamental rights argument and took the State to task for wasting time, resources, and breath on this case. Based on the State’s arguments, Pitt said, couples that don’t plan to procreate should be barred from marrying, post-menopausal women and sterile men should be barred, and anyone who doesn’t meet the State’s ideal standard doesn’t deserve to have their relationship recognized.

"The State has engaged in breathtaking hypocrisy." 

County Clerks may not interject their personal opinions or judgments when issuing marriage licenses. The liberty interest behind the fundamental right to marry is so strong that Clerks may not let their own determinations of a relationship’s viability stop them from issuing a license to an otherwise eligible couple. 

Pitt also criticized the State for their “fallback” position of “Just wait, we’re still collecting data.” Despite their “just be patient” approach, none of the State’s experts were able to specify when that data collection would be complete (spoiler alert: that’s because they’ll probably never be ready). Clerk Brown, by contrast, says NOW is the time to act. 

The State has not been able to cite any evidence to support its fears - and they are that - fears, not science, not logic, fears. There is no reason to delay the decision to allow same sex marriages. 

Pitt concluded by urging an injunction on the ban and requested that the Court issue an order to restrain any and all State officials who try to interfere with the Court’s orders. It is imperative, Pitt stated, that all 83 Clerks understand that they must issue marriage licenses if and when the ban is struck down. He urged the speedy delivery of the relief for same sex couples. 

"Time is of the essence. If not now, when?"


Photo courtesy of Daily Kos


Day 9: Closing Part I - Real people, real lives

Today was the final day of the DeBoer v. Snyder trial on marriage equality. For the past two weeks, we have heard arguments from both sides, walked by the same handful of protestors (including the infamous red sign lady…more on her later), and speculated how and when Judge Friedman will rule. 

The same group of anti-gay protestors that have been outside the courthouse nearly every day were there though they were joined by more equality supporters. One anti-gay protestor sang Amazing Grace before switching over to random Bible verses set to no particular tune at all. One woman, nicknamed red sign lady has been present for nearly every stage of the case, including motions back in October. Today, she was joined by equality minded clergy like Pastor Greg Briggs from Bethlehem UCC in Ann Arbor. Pastor Greg had a slightly different take on RSL’s statement that “God draws a line” when it comes to gay marriage.


The courtroom was far more full than it has been in the past two weeks. Many of those in attendance were marriage equality supporters.

At ten a.m. the Court was called  to order. The attorneys renewed their motions — Plaintiffs renewed Daubert motions regarding the weight and admissibility of evidence offered by the State’s “expert” witnesses. The State renewed their motions regarding using any information pertaining to the issue of second-parent adoption and also admissibility and weight of evidence submitted by plaintiffs. The Court felt that most of the motions were moot but preserved them for appeal.

Plaintiff’s attorney Ken Mogill delivered the closing statement. He opened strong, “The promise of equality is the promise of America.” There are over 15,000 same sex couples living in the state of Michigan. 2600 of those couples are raising 5300 children under the age of 18. There has been a legacy of discrimination in both the state and the country. 

These couples, Mogill argued, have made a commitment to care for one another, to support one another and each others families. Striking down the ban on same sex marriage will not fully erase the legacy of discrimination but it is a good start. 

Mogill then moved into the fundamental rights argument. The right to marry is a fundamental right. A denial of this fundamental right is a denial of due process. No other group is required to demonstrate their ability to parent in order to be granted the right to marry. Marriage is an expression of emotional support and public commitment — there is no obligation to procreate. See Turner v. Safley, 482 US 78 (1987).

Mogill cited cases that an old law school professor of mine referred to as the “fundamental rights greatest hits” — Griswold v. ConnecticutLawrence v. TexasLoving v. Virginia, etc. Griswold established the fundamental right to marital privacy. In Lawrence, the Court held that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment. The Loving case famously struck down the ban on interracial marriage.

Mogill then returned to what has been the State’s main argument: same sex marriage could have poor outcomes for children raised by same sex couples and therefore the ban should be upheld. Mogill refuted this claim again stating that there is no limit on marriage for people who would otherwise create poor outcomes for their children. He referenced Plaintiff’s witness Dr. Rosenthal who had commented that if the right to marry was limited to people who would raise children with the highest outcomes, then only wealthy, well educated, suburban people of Asian descent would be allowed to marry. 

In fact, Mogill argued, the State does not have a rational basis for denying thousands of couples the right to marry. Despite the State’s request that adoption not be mentioned during the trial, every single one of their witnesses focused on the hypothetical outcomes of children raised by same sex parents.

The State has blatantly ignored the best interest of the child standard that is used in nearly every other case involving children. This may be because when you look at the “best interests” standard it doesn’t mention sexual orientation AT ALL. It’s been far easier to rely on the opinions of economists and a disgraced sociologist. No, the best interests standard is far too liberal. It includes looking at crazy things like

  • the love, affection and emotional ties existing between parent and child; and
  • the capacity to provide the child with food, clothing, and medical care

Crazy town. I know. There isn’t a single mention of the parents’ sexual orientation…probably because no one, ever, ever, ever wants to think about their parents having sex. 

The studies presented by the State as evidence that there are poor outcomes for children raised by same sex couples were based on shoddy analysis and even “fraudulent data.”  When stability factors were controlled for, there is no statistically significant outcome difference. 

In fact, one of the State’s witnesses, Dr. Mark Regnerus, was publicly rebuked by his own University the day he delivered his testimony. Notorious anti-gay activists like Maggie Gallagher from NOM gave feedback on what was called a “reviled, rejected study.” Something I didn’t catch the first time around was that the study was submitted for publication before data collection was complete. 

Mogill said the State defendants “want to cast this as a social science experiment. Life is not an experiment, it’s reality. This case is not about experimental this or that. It’s about real people’s lives, real children’s lives and their vulnerability and their needs.”

There has never been a “traditional marriage” because marriage is an institution that is always evolving, always changing. Every time there has been change, scores of people have objected but progress has rolled on. History and tradition are merely a starting point (Lawrence)

"The denial of the right to marry is a form of discrimination that our society can no longer tolerate." — Plaintiff’s attorney, Ken Mogill

In closing, Mogill expressed the legal team’s love, admiration, and respect for the DeBoer-Rowse family. He expressed the hope that one day, April and Jayne can look back on this day and this case and say something similar to what Mildred Loving said 40 years after Loving v. Virginia had been decided:

My generation was bitterly divided over something that should have been so clear and right. The majority believed that what the judge said, that it was God’s plan to keep people apart, and that government should discriminate against people in love. But I have lived long enough now to see big changes. The older generation’s fears and prejudices have given way, and today’s young people realize that if someone loves someone they have a right to marry.

Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights.

Mogill got a little choked up as he delivered this statement. He had quite a bit of company. A woman in front of me in the courtroom wiped tears from her eyes as she sat with her partner of 28 years and their two children. Someone behind me sniffled and I blinked back a few tears of my own. 

This trial has been an incredibly emotional ordeal for me and I just sat in the courtroom and took notes. I can’t begin to imagine the stress and overwhelming burden for April, Jayne, their kids, or their legal team. They are to be commended and supported. In fact, you can click HERE to support them. Whereas the State was able to use taxpayer dollars to fly in witnesses, April and Jayne have relied on donations. Their legal team has donated a lot of time, effort, and resources in fighting not just for this family but for ALL families in Michigan. Visit Michigan Marriage Challenge today and give them some support!

*Photo courtesy of Michigan Marriage Challenge - Please support their work!


Day 8: We need more data, but don’t give us more data, you unrepentant gays

Today was the last day of testimony in the DeBoer v. Snyder case.

The State called Dr. Douglas J. Allen to the stand. Dr. Allen is a full professor in Economics at Simon Fraser University in British Columbia, Canada. He received his B.A. (1983) and M.A. (1984) in Economics from SFU and his Ph.D. (1988) from the University of Washington. 

Allen focuses on the economics of transaction costs and property rights which he applies to the study of social institutions (marriage, church, welfare, farms, etc). He has written twenty-nine papers on family, and six on same-sex marriage. Allen serves as one of the Circle of Experts at the Ruth Institute.* He is opposed to same sex marriage, both personally and professionally. He has published several articles on the issue:

  • Critique of Rosenfeld’s study;
  • Lit review on same-sex parenting that examines 60 studies;
  • Article using the Canadian census to examine high school graduation rates as related to parental gender;
  • A volume published by the Witherspoon Institute which further extends Rosenfeld’s study

His testimony for the state was focused on: a review of studies on same-sex parenting; the critique of Rosenfeld’s study; and Allen’s paper regarding high school graduation rates. 

His testimony began with discussion of his literature review on 60 studies involving same-sex marriage and families conducted between 1995-2013. Allen felt that 54 of the 60 were not generalizable because the samples were too small, biased (both researcher and subject), there were “soft” measures, and were unable to be recreated. Allen did not disclose how the studies were selected. Three of the studies he did find “legitimate” were his own study on high school graduation rates, Rosenthal’s study, and the utterly disgraced Regnerus study. 

Dr. Allen repeatedly referred to the other studies as “just not being enough.” He claimed that the three studies - that is Rosenfeld’s, Allen’s, and Regnerus’s - are the only studies that are legitimate. Allen also said that while Rosenfeld’s study was a “watershed” study, it was deeply flawed because the methodology was flawed. Allen stated that Rosenfeld had an improper reintroduction of data. Then, he presented this chart:**

This chart represents nothing. It is “metaphorical.” Although it seems to present the data that foster children dramatically underperform and traditional children perform well, that is not what this chart is saying. It is just something Allen drew up. 

Allen claimed that despite Rosenfeld’s claims of “no difference” between children raised by same sex couples and opposite sex couples, there is no statistical difference - which is a “different outcome.” By not including a standard error factor, Rosenthal failed to realize that outcomes are different when he removed the instability factors. By adding back in the instability factors (such as living in the same household for five years, biological children vs foster children, etc), Allen radically changed the data outcome. He claimed that the outcome difference was due to the gender of the parent. “Gender matters.” 

Allen also presented information on the Canadian census. His study focused on participants aged 17-22, which overlooks the early childhood years when transitions are likely to take place. He claimed that due to differences in the Canadian census, he was able to separate both the gender of the parents and the genders of the children. According to his study, boys raised by gay men had a 69% greater chance of graduating from high school. Again, he stated that gender matters. 

He stated that ten years is not long enough, nor is there enough data, to establish the outcomes of same sex marriage. In order for there to be more data, there would need to be observations of what same sex marriage across different states looks like. (Logic should dictate that the way we can give him the data he’s looking for is by expanding marriage equality but we all know that the State’s experts haven’t exactly traded in logic.) Allen stressed that states should be very cautious because social science is a long way from stating anything. 

During the cross examination, Allen was asked whether he had criticized the Regnerus study. Although Allen didn’t initially “remember” criticizing the study, he was quickly impeached and had in fact said that the Regnerus study was a comparison of apples to oranges. When asked more about the Regnerus study, Allen said that in order for him to increase his sample size so that it would be statistically significant, Regnerus had to use a “broader definition of a same sex parent.” In other words, the sample Regnerus originally selected was so trivial that it wouldn’t have been valid. During cross, the plaintiff’s attorney did a fairly good job of drawing out the fact that this indicates yet another flaw in the design of Regnerus’ study. 

Allen was then questioned about the prematurity of same sex marriage. Allen conceded that a greater number of jurisdictions with same sex marriage would yield faster answers regarding outcomes and effects. 

Let’s go back to that fake chart Allen used earlier:

Despite the fact that the chart shows the difference in outcomes between traditional and foster children is one full grade, this chart is not accurate nor was it meant to be accurate. This chart was just made up. We didn’t really get an answer as to “why” the metaphorical graph was necessary. Maybe he needed to fill half a page of space in the article. 

As the cross examination continued, Allen became increasingly defensive. He was snippy and dodgy with the attorney prompting the Court to intercede on a few occasions with reminders that he only answer the questions before him. 

Additionally, we learned that Allen had found that when stability was controlled for there was no statistically significant difference. He even created charts — real charts based on actual data that showed results, not just “stylized” false data. Unsurprisingly, this data was not reported in his studies. 

And then the bomb dropped. Allen had become more worked up as the cross continued. He was asked about his affiliations with the Ruth Institute and his working relationships with the big names in hate: Maggie Gallagher from NOM, Brad Wilcox, other Heritage Foundation folks. Then he was asked about his religious beliefs:

Plaintiff’s attorney Ken Mogill: Is it accurate that you believe the consequence of engaging in homosexual acts is a separation from God and eternal damnation?…in other words, they’re going to hell.

Allen: Without repentance, yes.

His testimony ended shortly after that exchange. There was a brief redirect by the state which included more made up graphs and an assertion that gays are unstable. He also reasserted that the issue is just too new. 

What’s up next?

CLOSING ARGUMENTS! Closing arguments will be held tomorrow morning, March 7 at 10 a.m. The plaintiff will go first, then Clerk Brown, then the State. The plaintiffs will have a chance for rebuttal. 

There will be a rally outside the courthouse tomorrow morning at 8:30 a.m. Join us to support the DeBoer-Rowse family. 

*Note: The institute takes its name from the Bible’s Book of Ruth. The Book of Ruth is often used in marriage ceremonies - specifically, Ruth 1:16-17 
Where you go, I will go;where you lodge, I will lodge;
your people shall be my people,
   and your God my God. 
 Where you die, I will die—
   there will I be buried.
May the Lord do thus and so to me,
   and more as well,
if even death parts me from you!”
In this passage, Ruth (a woman) speaks these words to Naomi (another woman). 

**This chart is an accurate recreation of what was presented in the courtroom today. Normally I’d take a picture and post it, but pictures are frowned upon (read: prohibited and they will take your cell phone) by the Court. 


Day 7: The “Nice” Bigot

The lovely BAMF Yvonne Siferd is back with the Day 7 recap.

This morning, there were only a small, but ever so committed, handful of people outside the courthouse whose lives will in no way be affected or changed by marriage equality – a.k.a. “protestors.”  One held a sign that quoted Obama, “Nothing keeps a young man out of trouble like a FATHER who takes an active role in his sons life,” and I’m still not really sure why.

Inside the court, the morning started with the plaintiffs continuing their cross of Dr. Joseph Price, economist extraordinaire.  Indeed, plaintiff’s attorney came out swinging with statistical calculation questions before asking, “do you need a calculator for that?”  Objection.  Sustained.

She drilled him on his use of Rosenfeld’s study, noting that he, himself, has held it up as “the gold standard of data sets.”  Price insisted, that even though Rosenfeld’s study, and his replication of it, found that there was no statistical difference in child outcomes of kids raised by same-gender parents compared to those raised by heterosexual parents, there was still an economically significant difference and that children of same-gender parents had worse outcomes.

There was some quibbling over the term “heterosexual union” as Price insisted that the term was imprecise.

Discussion of Price’s 3 mechanisms that he theorizes explains the differences in outcomes followed with the following highlights:

1)  Gender Variation a.k.a. mom + dad = ideal, because they play “distinct and complimentary roles” thereby disadvantaging kids of same-gender couples.  Moms are more nurturing and speak in soothing tones and read to their kids and do stuff inside the home, like dishes!  Dads are more physical and “rough and tumble” and do stuff outside the home, like yard work!  

Plaintiffs attorney:  “I’m not being facetious with this question.  I actually want to know, what century is this based on?”

Allen, without blinking:  “2003.”

After drilling him on gender stereotypes, she asks, “So are you saying that gay men are never interested in interior design or that lesbians are never interested in sports?”  Objection.  Sustained.

“You understand that in a two dad house, someone still does the dishes, right?”

2)  Biological Ties a.k.a. blood is thicker than water.  This was a short discussion about how a lack of a biological relationship with children tends to lead to poorer outcomes.  He didn’t really have much of an “expert opinion” on donor conception or whether people who seek alternative ways to have children are highly motivated to have children.

3)  Family Stability a.k.a. homos are just plain unstable.

Most interesting was Allen’s statement that the best way to analyze the stability of LGB couples versus heterosexual couples, was to use Norway because they have a marriage-ish institution for LGB couples that has “practically all” the same rights, benefits, and privileges offered to heterosexual marrieds.

Finally, Allen had no “expert opinion” on whether other groups who have poorer outcomes than the “ideal family” shouldn’t be barred from marriage because it adds value to children’s lives when man + woman = married.

Redirect.  Boring.  Next witness.

Loren Marks, with a PhD. in Social Work and a specialty in Child and Family Studies.  Here’s a link to his cv.  He did a study too, “Same-Sex Parenting and Children’s Outcomes:  A Closer Examination of the American Psychological Association’s Brief on Lesbian and Gay Parenting.”  He was also a contributing author to Why Marriage Matters:  Thirty Conclusions from the Social Sciences along with Brad Wilcox and Maggie Gallagher.

First impressions:  he’s handsome from the side (only and only from a distance) and his voice is a bit creepy, it sounds like this, and he furrows his eyebrows when he’s making a point like he’s a cowboy or Clint Eastwood or Zoolander.

Second impressions:  he’s a size queen, just like all the other State witnesses so far.  They keep banging the drum of “bigger is better” when it comes to study sample size.  In other words, they want large, random, representative samples on the outcomes of children of same-gender parents rather than “convenience samples” which are most common in the study of psychology – something in which none of the State’s witnesses are experts.  This is important for several reasons.  First, an important and relevant piece of evidence that the plaintiffs have introduced is that fact that the American Psychological Association (APA) issued a statement in 2005 that there is “no difference” in the outcomes of children of same-gender couples compared to the children of heterosexual couples.  Second, many of the studies that were introduced by the plaintiffs were studies performed by psychologists.  

Marks did a study to look at the outcomes of children of same-gender couples because of the APA’s 2005 statement that there was “no difference” in their outcomes compared to the children of heterosexual parents.  He did this because of the “absolutist” language used by the APA, and the fact that it seemed “advocacy oriented.”  He feels that it is an example of “scientific groupthink,” a phenomenon characterized by homogenous beliefs within a group that make it increasingly difficult to make a finding outside of the paradigm prized by that group.  Here, of course, he is concerned with a “liberal bias” within the field of psychology, most specifically, the APA “no difference” statement, which received a unanimous consensus (157-0).

This consensus got Marks thinking that one of two possibilities were at play here:

1)  The body of research is so substantial that no reasonable psychologist could oppose it; OR

2)  It is too costly, professionally, to offer a differing opinion.

Thus, his study began.

It is also important to note that Marks is not just a size queen, he prefers “hard” variables over “soft” variables.  Hard variables are objective and easily observable by a third party, while soft variable are subjective and reliant on self-reporting (sex is hard, while sexual orientation is soft).

Marks’ six major areas of question/issue with the studies relied on by the APA for their “no difference” conclusion were:

1)  Gay and Lesbian households in the majority of the same-gender parenting studies were not culturally, ethnically, or economically diverse  not representative;

2)  In 26 out of the 59 studies, there was no heterosexual comparison group;

3)  In some studies, they used “single moms” to represent heterosexual parents;

4)  Two key studies that contradicted the APA were minimized to a footnote;

5)  Critical social outcomes were largely unexamined (gender-related outcomes among others); and

6)  There was no comparison examining the outcomes during adolescence/early adulthood.

The thing about Marks’ testimony was that he actually was the first State witness to make some valid points.  He fairly pointed out some really critical issues with all scientific studies in that, “We see what we seek.”  He noted that all researchers have blind spots.  He also seemed like a really nice guy minus the bigotry.  I felt so dirty in agreeing with him at all.

He talked about his faith, which is Mormon.  When asked, “Does your religious view inform your work?” he actually paused and thought about it.  “That’s an interesting question,” he replied before giving the most honest answer of any State witness that it does and it doesn’t.   “It was biases that made me take a second look, but my questions are unbiased,” he said, “the data isn’t reflective of my religion.”

He wrapped up his testimony by talking about large sample sizes some more, and ultimately came out on the side of, “I cannot make a claim for or against this issue,” because there isn’t enough data yet, and the data that there is is not “good science.”  “The line between science and advocacy appears blurred,” in other words, the essence of the State’s case.


It was a long cross.  Essentially what came out of it was that he is “not in favor of redefining marriage at this time,” and he has “no opinion” on second-parent adoption.

He wouldn’t claim to be an expert in psychology.  He understands that “convenience” sampling is often used in psychology.  He also understands that “it appears to be difficult” to find a large enough sample to satisfy his longing.  He even understands that stigma and discrimination play into the difficulty of getting enough volunteers to study.  And he agreed that there is a consensus within psychology and other social sciences in favor of marriage equality.

He wouldn’t claim to be an expert in child outcomes, child development, or child adjustment.

He’s a qualitative, not a quantitative guy, so you know he’ll be monogamous.

He doesn’t favor leaving out other groups who have higher break-up rates, but since same-gender relationships are naturally unstable, he thinks we should wait and see what the studies say someday.

He strives to be a “highly evolved” Mormon and fully believes in the tenets of the Latter Day Saints.


In terms of the “positive aspects of marriage” that are mentioned in Why Marriage Matters, he has “no idea” whether or not they would also apply to same-gender couples (because we are so different than hetero homo sapiens).

Finally, nothing he’s read since 2005 has changed his mind or opinion on these issues.  Shocking.


← Older entries Page 1 of 3