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Lesbian couple suing for adoption rights are told that they have the wrong issue

Timothy Kincaid

August 29th, 2012

April DeBoer and Jayne Rowse, both nurses, have three children: (Detroit News)

DeBoer adopted a girl, born in February 2010 to a 19-year-old mother.

Rowse, meanwhile, adopted two boys, ages 3 and 2. One was surrendered by his biological mother and the other was abandoned by his mother, a drug-addicted prostitute

But Michigan state law will not allow them to adopt the children jointly, thus giving the children the extra rights and security that come from two-parent adoption (which are considerable). They asked U.S. District Court Judge Bernard A. Friedman, a 68 year-old Reagan appointee, to overturn the state’s law as unconstitutional.

He said, “no”. Or, at least, “not yet”. Because they really were focusing on the wrong issue:

Friedman said Wednesday he’d consider arguments from both sides before rendering his decision, but will first allow the plaintiffs ten days to consider amending their complaint to include a challenge to the state’s ban on same-sex marriages.

“That’s the underlying issue,” Friedman told attorneys, noting that he’s “not suggesting they do it.”

“Both arguments are about marriage and how broad or narrow it should be. That’s the bottom line.”

Oh. Well, come to think of it, that would be the real issue, wouldn’t it?

Of course, just because Judge Friedman correctly noted the real discrimination issue doesn’t mean that he will find the ban unconstitutional. But it does suggest that he correctly understands DeBoer and Rowse’s underlying problem. So I think it is at least likely that he’s sympathetic to giving the marriage issue a fair hearing. And we seldom need more than a fair hearing to point out the obvious.

How very fascinating it would be for DeBoer and Rowse to sue for adoption rights only to find that they’ve overturned the state’s marriage ban.

Comments

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Truthspew
August 29th, 2012 | LINK

A similar ruling happened here in RI over a gay divorce. The judge told the petitioners that they were filing under the wrong guise, that if they had filed under Article 1 Section 2 of the RI Constitution, the judge would have had no choice but to grant their petition.

And because of that the morons at GLAD say the judiciary is ‘hostile’ to the cause of marriage equality.

Duh – Article 1 Section 2 is our equal protection clause.

Michael C
August 29th, 2012 | LINK

While I commend Judge Friedman for accurately identifying the core issue in the case, I am hesitant to infer from his recommendations a positive ruling. Friedman has been described as “conservative and rules along party lines.” If this perception is accurate, I imagine this story is going nowhere fast.

http://www.therobingroom.com/Judge.aspx?ID=1079

Tony
August 29th, 2012 | LINK

If it does get overturned, I hope it’s after November. Otherwise there could be a big backlash when people vote on the constitutional amendment.

David Waite
August 29th, 2012 | LINK

Tony, two things: Federal court cases never move that fast (less than 9 weeks from amended filing to verdict) and Michigan doesn’t have a constitutional amendment on this year’s ballot.

Michael C, this story is indeed going somewhere if they amend their suit because, however the trial judge rules on a suit amended to address marriage equality, the verdict will be appealed. Moreover, if this judge “ruled on party lines” exclusively, he would never have allowed them time to amend, since he didn’t have to do so, and couldn’t even have been criticized for simply dismissing (or ruling against) their original complaint.

Nathaniel
August 30th, 2012 | LINK

Unless, David, he would find it easier to deny them equal marriage rights than to deny them equal adoption rights. I can easily imagine an adoption case, bringing out the sad faces of the children, focusing only on they extra burdens they must suffer even though they have been adopted, being difficult to deny. The outcry would be horrendous. However, if they amend, the focus can easily shift away from the children and to the more etherial question of whether two people of the same sex can indeed form a marriage together. The misfortunes of the family would be drowned out in a chorus of God and abominations, resulting in a less desirable outcome. Even though they could appeal, the immediate needs would be further delayed, the results of the appeal would be equally uncertain, and at the end of the day, Michigan politicians could conspire to do the same thing Arizona did, denying both marriage and adoption.

Of course, that is the cynical me talking. The last action could happen anyway, and I doubt somebody would have really thought this through and said, “I can’t deny them this, but I could more easily deny them that.” What’s more, if he did rule against them after they amended, the public outcry might be far worse, and would only serve to highlight the families LGBT people have already made, and which are already thriving in spite of the restrictive rules they face. As David suggested, it would have been easier for him to deny them outright (if that were his intent) and keep this out of the limelight altogether.

David Waite
August 30th, 2012 | LINK

Nathaniel, Friedman would have to rule against the original complaint, assuming he could even get away with allowing the couple to litigate the issue in his court as an adoption issue. That is because there is no basis in Michigan or U.S. law to grant both-adult adoption rights to unmarried couples of any gender configuration. The couple would not even have been able to appeal his dismissal to the U.S. 6th Circuit with any hope of prevailing there. Optics are never an issue in federal court situations; our federal courts are rendered entirely immune to that kind of influence. Therefore, if denial of their adoption attempt is his ultimate goal, all Friedman needed to do was keep his mouth shut.

Federal Judge Friedman’s decision to give this couple the proper legal advice (which should have come from their own lawyer before the lawyer filed this case on their behalf) leaves him at least technically vulnerable to rebuke from the SCOTUS. Note, the attitude of Michigan politicians and interest groups does not affect a federal (lifetime appointment) judge; only a SCOTUS rebuke can do so, and if he gives no advice he can’t be rebuked for not giving it.

I can’t emphasize this strongly enough: This couple’s only chance of prevailing on the adoption issue is by helping to overturn DOMA. This is exactly what Friedman has told them (in different words) and exactly what he has given them the chance to do, by allowing them to amend their original complaint, which he did not have to do. This whole case to this point is a win for marriage equality, and nothing for us to be nervous about.

Michael C
August 30th, 2012 | LINK

Thank you, David, for your excellent comments. I am confident of the overall shift in our country’s attitudes regarding our rights, but have become somewhat pessimistic concerning the small battles. While reading this story, I felt my heart lifted. I really shouldn’t have wet blanketed this article.

Jarred
August 30th, 2012 | LINK

Nathaniel:

I think it would be hard to shift the focus away from the children. After all, haven’t opposing marriage equality been trumpeting that marriage is all about the children? I think it would certainly look pretty suspicious for them to try ignore the very real children affected by this case to talk about “marriage in the abstract,” as it would be a strong indication that no, they really don’t believe their own rhetoric. (At least not when that rhetoric suddenly inconveniences them.)

Timothy Kincaid
August 30th, 2012 | LINK

This case presents an interesting and unique opportunity. Our opponents love to argue that discriminatory marriage is necessary so as to provide for the best interest of the children. This case forces them into an uncomfortable position.

The plaintiffs are not asking for marriage rights in the abstract. If amended, they will be asking for marriage rights for one specific purpose.

Because this is an adoption lawsuit amended to include a challenge to the marriage ban, the question becomes not whether the marriage ban is good for children, but whether it is good for these children.

The attorney general’s office will need to argue that the state has an interest in denying these three children the right to parental protection. And the appeal to the theoretical value to unidentified and abstract children – which is their standard fare – may look laughable in comparison.

We are no longer left with the attempt to introduce our own theoretical children. They are front and center.

Steve
August 30th, 2012 | LINK

There are several states where joint adoption is legal without marriage equality or DPs/CUs:
Arkansas (in Howard v. Arkansas), Florida and Indiana

Many others have no explicit prohibition and some courts may have granted adoptions on a case by case basis.

It’s really absurd to tie joint adoption to marriage when single people can adopt. Banning single people from adopting makes some sense actually. But marriage isn’t the only way for a stable couple to live.

Nathaniel
August 30th, 2012 | LINK

David, thanks. I didn’t think about their ability to appeal the case under adoption rules. Though Steve’s point makes sense, it also make sense in a ‘they would if they could’ direction to challenge the rules under marriage restrictions rather than limitations on adoption. In that way, they win much more.

Jarred, what I have seen of ‘pro-family’ groups is that they talk very narrowly about what constitutes a family. They talk in generalities about what is good for children, then dismiss specifics that challenge those assumptions. I wouldn’t expect those tactics to change in the courtroom. In fact, I would expect them to ignore the matter of children all together to avoid highlighting the fact that they are trying to harm those specific kids. After all, at that point, it would be about the right of the Plaintiffs to marry rather than their rights to adopt. If the Plaintiffs aren’t careful, they could get sucked up into defending their way of life rather than keeping the focus on how the kids are being harmed. It would only serve the LGBT community for the defense to examine the matter of children, because no matter how you slice it, those kids are better off adopted and their lives would be further improved by the stability of marriage.

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