U.S. District Judge Bernard Friedman heard arguments on October 16 from the state of Michigan and lawyers for a lesbian couple who want to jointly adopt each other’s children, before announcing that he was denying each side’s motion for summary judgment and scheduling a February 25 trial on the constitutionality of the Michigan Marriage Amendment. The Amendment’s constitutionality is an issue in the case because Michigan’s adoption statute only allows couples who are married to adopt jointly, and the Amendment prohibits same-sex marriages in the state. The case is Deboer v. Snyder, Civil Action No. 12-cv-10285.
In a brief opinion released after the hearing, Judge Friedman explained that there was a factual dispute that would have to be resolved based on trial evidence before he could determine whether the Amendment is constitutional. The dispute concerns the state’s argument that “providing children with ‘biologically connected’ role models of both genders that are necessary to foster healthy psychological development” justifies denying same-sex couples the right to marry. Friedman quoted extensively from an affidavit by Dr. Jeanne Howard, Co-Director of the Center for Adoption at Illinois State University, which had been submitted by the plaintiffs in support for their motion for summary judgment. Dr. Howard’s affidavit reviews studies showing that children raised by same-sex couples “show patterns of adjustment similar to those of heterosexual adoptive parents and their children,” and that other studies have shown “no differences for children in psychological adjustment, gender identification” as between those raised by same-sex couples and by different-sex couples. “After reviewing the record, including Dr. Howard’s affidavit, the Court concludes that a genuine issue of material fact exists with respect to defendants’ gender role-modeling justification for the MMA,” wrote Friedman.
The state had offered three other justifications, but Friedman noted that all of them “have been rejected by other courts in recent years,” most significantly in the Supreme Court’s decision in Edie Windsor’s case on June 26, so this case will be a battle of expert witnesses about the psychological development of children raised by same-sex couples. There are no reputable studies showing that children are disadvantaged psychologically from being raised by same-sex couples, apart from the notorious Regnerus study, whose methodology and interpretation have been severely challenged. If the state calls Prof. Mark Regnerus as an expert witness, his cross-examination by plaintiffs’ counsel will provide a first opportunity to question him under oath about the sharply disputed circumstances under which the study was produced and the disputed conclusions about what it purports to show.
If this scheduled trial sounds like a replay of an old show, that’s because the Proposition 8 trial in California in 2010 was devoted almost exclusively to this issue, and so was the first-ever marriage equality trial, held in Hawaii in October 1996. In both of those cases, testimony by the state’s witnesses ended up making the case for the plaintiffs, as they conceded under cross-examination that children have not been shown to be disadvantaged from being raised by same-sex parents, and that denying their parents the right to marry was actually disadvantaging the children materially and psychologically. In both of those cases, the trial judges produced lengthy opinions with detailed findings of fact, rejecting the state’s argument that concern for the psychological welfare of children justified denying the right to marry to same-sex couples.
Judge Friedman announced that he would apply the “rational basis” approach to evaluating the constitutionality of the Amendment. Because the 6th Circuit Court of Appeals, whose precedents bind the district court in Michigan, “does not consider gays or lesbians a suspect or quasi-suspect class” for purposes of constitutional analysis, Judge Friedman concluded that heightened or strict scrutiny does not apply to this case. But he took note of the recent DOMA ruling from the 1st Circuit and the Supreme Court Windsor case, suggesting that something more than the highly deferential traditional rational basis test would apply, in light of the history of discrimination at the hands of the state government suffered by gay people.