Michigan judge delays case to await Supreme Court rulings on gay marriage

A Michigan judge announced Thursday that he is delaying his decision on a case challenging that state’s gay marriage ban until June, when the US Supreme Court is expected to announce its rulings on two landmark gay-rights cases.

At issue before the high court is whether measures such as the federal 1996 Defense of Marriage Act (DOMA) or California's Proposition 8 discriminate against homosexuals in violation of the Equal Protection Clause of the 14th Amendment.

"I'll be watching those cases close," US District Judge Bernard Friedman told The Detroit News. "Hopefully, the Supreme Court will give us some direction."

In the Michigan case, two Detroit-area women are challenging the state’s gay marriage ban because it prevents them from jointly adopting their three children under the state’s adoption requirements that they be legally married.

Michigan is one of a handful of states that has a state code that forbids unmarried couples from adopting children. The case, which had been expected to resume at a hearing in Detroit on Thursday, began as a challenge to that state restriction.

But at the urging of the Judge Friedman, the couple expanded their complaint to challenge the state's constitutional ban on same-sex marriage – not because it violates the Equal Protection Clause but because it prevents same-sex couples from complying with the state's requirements for legally adopting children.

“They would get married but because they are lesbians, they can’t,” says Dana Nessel, the attorney for April DeBoer and Jayne Rowse of Hazel Park, Mich. “The state code also affects unmarried couples but, for us, if you’re unmarried and really want to have kids together, then get married. Our clients don’t have that option.”

The couple filed their complaint against the adoption code in January 2012, but in an August hearing Friedman, an appointee of President Reagan, suggested that their best legal option was to challenge the state’s gay marriage ban.

The ban, which Michigan voters approved with nearly 59 percent of the vote in 2004, prohibits gays from legal marriages, civil unions, or domestic partnerships. The state is one of 31 states with constitutional amendments, approved by voters, prohibiting same-sex marriage.

Under the current law, unmarried couples in Michigan cannot jointly adopt children. In the case of Ms. DeBoer and Ms. Rowse, one partner has legally adopted one child while the other has adopted the other two. By jointly adopting the children, the couple would share a legally recognized relationship, which they say is essential because their three special needs children face long-term physical and mental impairments. The couple has shared the same residence for six years.

Friedman’s decision to push the couple to challenge the state’s gay marriage band is unusual, says Carl Cecere, an attorney in Dallas who has represented same-sex couples seeking marital rights. He says that even if the ban is overturned, it may benefit the couple, but won’t “answer the question whether unmarried couples have an easy path to adoption.”

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