Cooley professors write amicus brief in support of same sex marriage

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PHOTO COURTESY OF COOLEY LAW SCHOOL AND LEGAL NEWS FILE PHOTO BY CYNTHIA PRICE

by Cynthia Price
Legal News

In 2004, Michigan voters passed the Michigan Marriage Act (MMA), then Proposal 04-2, by a margin of 58.6% to 41.4%. That proposal, which became an amendment to the Michigan Constitution, extended recognition of marriage solely to “one man and one woman.”

There are some indications in more recent public opinion surveys that such a proposal would not succeed today — even that the numbers have reversed — but results vary widely, with some polls still showing a small majority opposed to allowing same-sex marriage.

The polls do, however, consistently demonstrate that there is a movement towards greater acceptance of the notion that members of the LGBT (Lesbian/Gay/Bisexual/Transgendered) community should be allowed to marry the partner of their choice and enjoy the same rights as heterosexual couples who marry.

And that comes as no surprise, says Thomas M. Cooley Law School Ann Arbor Professor Daniel Ray. “Frankly, I think that’s owing to the fact that people are beginning to see that these kinds of laws aren’t just abstract things that don’t really touch people’s lives. They hurt families, they hurt someone who’s a friend or a co-worker, and then people want to do something about it.”

Still, Ray adds, “The pace of change here in Michigan has really been quite remarkable.”

Ray and seven other Cooley professors were moved to file an amicus brief in a high-profile case that will explore the constitutionality of the MMA in the U.S. District Court for the Eastern District of Michigan, DeBoer v. Snyder.

Professor Ray got his undergraduate degree in Finance from Texas Christian University and his J.D. from the University of Missouri-Kansas City Law School, for which he taught before coming to Michigan. He called on colleague Brandon Beery to co-author the brief. Though Beery is now at the Tampa, Fla., campus of the law school, he is a Cooley graduate who worked as a research attorney for the Michigan Court of Appeals before spending time in private practice.

The two wrote the 34-page brief and sent it out to various Cooley colleagues for sign-on. In addition to  Marjorie B. Gell, tax professor at the Grand Rapids campus, the brief was joined by professors Karen L. Chadwick and Gina M. Torielli from the Ann Arbor campus, Emily S. Horvath from the Lansing campus, and Frank C. Aiello and Alan M. Gershel (who is the Counsel of Record) of Auburn Hills campus.

Interestingly, the case started out as a challenge to the Michigan Adoption Law. April DeBoer and Jayne Rowse are same-sex partners who would like to adopt together three children they have adopted separately.

After DeBoer filed, the judge in the case, Judge Bernard Friedman, recognized that the underlying cause of their inability to adopt together was that they were not allowed to marry (and non-married couples cannot adopt together under Michigan law). He asked them if they wanted to amend the suit to include the question of whether MMA is unconstitutional, and they did in Sept. 2012.

The couple had hired Dana Nessel to represent them. The Detroit attorney is on record as “the first attorney in the state to successfully argue that a same-sex, non-biological parent has rights as a natural, equitable parent under the Child Custody Act at the trial court level,” according to the website of her firm, Kessel and Nessel.

The State of Michigan filed for dismissal of the case. Judge Friedman, who had previously said he was waiting for the U.S. Supreme Court rulings on applicable cases, turned down the State’s motion, saying that the SCOTUS decision on the Defense of Marriage Act (U.S. v. Windsor) provided new legal ground for allowing DeBoer and Rowse “their day in court.”

An interesting twist is that a March 2013 bill that authorizes emergency harbor dredging funding (at the time when lake levels were very low) contains a provision that marinas which discriminate based on sexual orientation render themselves ineligible to apply for the funding. This departure passed through both houses of the Michigan legislature and was signed by Gov. Snyder

Nonetheless, MMA remains the law of the state and governs in terms of such issues as partner benefits (though not absolutely), the ability to sue for wrongful death of a partner, and, of course, adoption rights.

Ray decided to get involved when he saw an on-line interview where Nessel asked for help in the case.

In an official statement, Ray said, “This amendment not only bans same-sex marriage, it also harms the families of same-sex couples, depriving them of the protections of Michigan law... At its core, the amendment is discriminatory and does not reflect the kinds of values the people of Michigan put in our constitution.

“The United States Supreme Court has ruled several times, most recently this past June, that discrimination against gays and lesbians just because of their sexual orientation is unconstitutional,” he continued. “The amendment does just that – it singles out gays and lesbians because of their sexual orientation – and refuses to recognize their committed relationships for any purpose. Michigan punishes an entire class of people who have done nothing wrong. The United States Constitution doesn’t allow Michigan to do that.”

The amicus brief puts forth just that very simple argument. MMA “violates the equal protection principle of the Fourteenth Amendment to the Constitution,” and “was motivated by the same kind of discriminatory animus the Supreme Court found in Romer [Romer v. Evans, a 1996 case that directly referenced a Colorado ballot measure failing to protect LGBT people from discrimination, concluding ‘laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.’] and Windsor [referenced above].”

It also, according to the brief, “punishes same-sex couples... because of who they are.” The argument continues, “Gays and lesbians are set apart from all others on the basis of a single characteristic – sexual orientation – and their relationships are denied any recognition under Michigan law.”

The argument puts much detail to the sense of animus exhibited by the proposal’s authors, based on public interviews. Considering that discriminatory attitude, the authors ask, “If rendering same-sex relationships a legal nullity does not violate the equal protection principle of the Fourteenth Amendment, then amici are not clear what does. This must be what Justice Kennedy meant when he said that ‘[i]t is not within our constitutional tradition to enact laws of this sort.’ Romer”

Judge Friedman will hear oral argument on Oct. 1, but Ray opines,  “Regardless of who wins, this is going up to the Sixth Circuit.” He also feels there will eventually be a request to the U.S. Supreme Court, but points out there is a slim chance of that court reviewing any given case.

“I’d like to say, in discussions between myself and the other faculty members, that we were out to defend some grand constitutional principle, but the truth of the matter is that I just have way too many gay and Lesbian friends and acquaintances, and I got really tired of seeing them treated like second class citizens,” Ray comments.

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