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Posts for June, 2014

Michigan GOP former Speaker of House calls for equality

Timothy Kincaid

June 17th, 2014

A number of formerly prominent Republicans have signed a brief urging the Sixth Circuit Court of Appeals to affirm the ruling that Michigan’s ban on same-sex marriage is in violation of the US Constitution. (ClickOnDetroit)

The Republicans include former House Speaker Rick Johnson and former House Majority Leader Chris Ward.

Former U.S. Rep. John “Joe” Schwartz has signed on, along with former state lawmakers Leon Drolet, Doug Hart, Dave Honigman and Susan Grimes Gilbert.

It seems to me that in some parts of the country we have now reached the stage in our quest for equality wherein former GOP leaders or power-players are beginning to champion our cause. And while most of those currently in power do not yet appear to be willing to be publicly supportive, many have elected to adopt language such as “let the judicial system decide” or even “it is inevitable, so we should focus on respecting each other”.

While Republicans are not speaking in harmony with not the fully supportive language of the Democrats, I think that these shifts in the political stance of Republicans leaders, both current and former, foretell a time not so distantly ahead in which civil equality is assured and not even terribly controversial.

Snyder calls for non-discrimination

Timothy Kincaid

June 4th, 2014

Michigan Governor Rick Snyder (R) has been walking a careful line when it comes to gay issues.

When his state’s ban on marriage equality was found to be unconstitutional, he opted not to share his own views and left the appeal to the state’s attorney general. And when his office had to take a position on those marriages that occurred before a stay was issued, he found a legal medium; the marriages were legal (and thus could be recognized federally) but the state’s statutes (once the ruling was stayed) disallowed state recognition.

But now he has found a way to be supportive of the gay community, and do so at the behest of a Republican constituency. Speaking at the Detroit Regional Chamber Policy Conference on Mackinac Island, where a group of business leaders has endorsed adding LGBT rights to the civil rights law, he concurred. (Michigan radio)

Governor Rick Snyder says he’d like the Legislature to amend Michigan’s civil rights law to add protections for gays, lesbians and transgendered people.

“I don’t believe in discrimination and I think it would be great if they, the Legislature, looked at it later in the year,” said Snyder.

Michigan Files Regnerus-Free Marriage Appeal Brief

Jim Burroway

May 8th, 2014

When U.S. District Court Judge Bernard Friedmam declared Michigan’s same-sex marriage ban unconstitutional last March, he spilled considerable ink all over the state’s expert witness, Mark Regnerus, whose discredited Witherspoon-funded “study” purported to show that children of gay couples fared worse than other children. The problem was — and this came out in the cross-examination of the state’s star witness — the study included only two children who were actually raised by gay parents, and Regnerus admitted that they came out “Pretty good.” In his written opinion, Judge Friedman blasted “his 2012 ‘study’ (which) was hastily concocted at the behest of a third-party funder” as “flawed on its face.”

Michigan Attorney General Bill Schuette appealed the decision, and in a brief filed with the Sixth District Court of Appeals, he quietly omitted all references to Regnerus’s bogus study, and argued instead that same-sex marriage should be banned not because experts believe that same-sex parents are bad parents, but because voters believe it:

In preserving marriage as between a man and a woman, a reasonable voter might have thought that it is beneficial when children are raised in a home with both a mom and a dad. Another reasonable voter might have thought that this definition encourages those couples with the inherent ability to have children (i.e., opposite-sex couples) to enter into a committed, exclusive relationship, for the benefit of any children they might have. …

This appeal is not about approval or disapproval of same-sex relationships or sexual orientation. Nor is this appeal about a gay or lesbian individual’s ability to be a parent. This case is not about single moms’ and dads’ ability to raise children.  As a society, we wish that all children had loving parents, no matter what their sexual orientation may be.

Because Judge Friedman wrote that he could not find that Michigan voters acted out of animus when approving the state’s constitutional amendment outlawing same-sex marriage, Schuette’s brief takes as its central argument that striking down the constitutional amendment “demeans democracy,” and cites Justice Anthony Kennedy’s opinion in a Supreme Court ruling (Schuette vs BAMN) upholding Michigan’s ban on affirmative action. Singling out Kennedy this way is noteworthy. With Kennedy considered the potential swing vote in any upcoming Supreme Court ruling on marriage equality, this brief was more or less written to Kennedy, rather than to the judges at the Sixth District Court of Appeals:

Justice Kennedy’s admonition on this point in Schuette is worth repeating: “It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.” 572 U.S. __, slip op. 17. To put this in perspective, more than 45 million American voters across the country have voted to retain the definition of marriage as between one man and one woman. Respect for the dignity of these millions of voters, who must be presumed to be “decent and rational,” should make courts reluctant to conclude that support for maintaining the definition of marriage is irrational. After all, a decision by this Court that there is no rational basis for Michigan’s voters to have defined marriage as they did necessarily means that not only Michigan’s voters, but more than 42 million other American citizens who have voted the same way, did not have among them a single conceivable rational basis for their votes.

But they’re still not ready to give up their straight-parents-are-the-best argument. They’re just pinning it on voters, and not the experts:

The only question at issue, then, is whether any conceivable reason supports the people’s decision to retain the definition of marriage.  Under the governing standards for rational-basis review, the people’s decision must be given the benefit of the doubt—it must be upheld if their policy choice is at least debatable, and even if it is under-inclusive or over-inclusive (or both).

Defining marriage as between one man and one woman satisfies this test. The State has a legitimate interest in marriage precisely because of marriage’s inherent connection to children. The vast majority of children born in Michigan (and the United States and the world) are born as a result of the sexual union of a man and a woman. Promoting marriage as between a man and a woman thus recognizes that every child should have the opportunity to know and have a relationship with his or her biological mother and father, and it increases the likelihood that the most common type of procreation will occur in a long-term, committed relationship. It was reasonable for Michigan voters to think that this is a beneficial setting for children, and thus to link marriage to procreation—the biological fact that every child has a mother and a father.

Michigan isn’t the only state to drop Regnerus like a hot potato. Two weeks after his study went down in flames in the Michigan case, attorneys for the Utah Attorney General’s office filed a special “Supplemental Authority clarifying position re: Regnerus study” with the Tenth Circuit Court of Appeals in Denver, in which the state disavowed its own citing of the Regnerus study in the original appeals brief filed in February. It looks like the word has gone out: Regnerus’s study is radioactive and the nearly $800,000 spent on it was wasted — unless you count its influence in Russia as a success.

Snyder suspends legal marriages

Timothy Kincaid

March 26th, 2014

Earlier today I speculated that Michigan Governor Rick Snyder (R) would find that those legal marriages occurring between the time in which Judge Friedman found the anti-gay ban unconstitutional and the time in which the court issued a stay would be precisely that: legal marriage. It seems I guessed wrong. (Buzzfeed)

On Wednesday, Snyder stated that those marriages are legal but that, because the state’s amendment banning recognition of such marriages is back on the books while the stay is in place, “the rights tied to these marriages are suspended” for the time being.

There may be legal arguments supporting that view, but I suspect this may have political consequences that do not work in his favor.

The immediate consequence is that this opens the marriages up to federal recognition.

Michigan Gov. Snyder coy on marriage, waiting for legal counsel

Timothy Kincaid

March 26th, 2014

Michigan Governor Rick Snyder (R) has been walking a narrow line since Federal Judge Bernard Friedman found that his state’s ban on same-sex marriage violated the US Constitution. Although Snyder is on tape stating in 2010 that he believed marriage to be “between a man and a woman”, he is now insisting that he has no public opinion on the matter and will go by whatever the courts decide.

Snyder is trying to differentiate himself from the state’s Attorney General, Bill Schuette (R), who has appealed the decision and on whose behest the court has issued a stay. He’s trying to play the role of spectator, an uninterested party who will do as directed.

And, as a practical matter, he is. Other than as cheerleader in either direction, his views are immaterial to the outcome.

But Snyder does have one significant role in the process. He will decide whether or not the State of Michigan will honor those marriages that occurred between the ruling and the stay.

Of course the courts can overrule Snyder’s decision, whatever it may be. But should he decide to honor the marriages, it will eliminate delay and ease the transition. And it is unlikely that a court would overturn such a decision or even that anyone has standing to appeal it.

And on that matter, Snyder is walking softly: (MLive)

“I appreciate that it’s a confusing circumstance, and I would like to provide some clarity, but I need to do that based on legal advice,” Snyder told reporters after an unrelated event in Lansing. “We’re going through that analysis at this time.”

The legal status of those marriage licenses is in question, and a three-judge 6th Circuit panel did not offer any clarification on Tuesday when they extended the stay pending the outcome of an appeal by Attorney General Bill Schuette.

Press Secretary Sara Wurfel said the Snyder administration is prepared to offer guidance to same-sex couples who obtained licenses as soon as a legal analysis is complete. That could be later Wednesday, or it could be later in the week.

Wurfel said the governor’s legal team is examining whether the state should recognize those marriage licenses for tax purposes, adoption and more. Michigan does not currently recognize same-sex marriages legally performed in other states.

“Legal advice” could go either way. But, to speculate, I think the likelier course is that Snyder’s legal team will find that legally married couples are legally married.

There’s very little political downside to recognizing marriages that have occurred. And Snyder, who seems to have no fire in his belly over social issue has mostly shied away from contentious issues, expressing a desire to focus on jobs and the economy.

And the risk of opposing recognition is high. Michigan is a purple state in which a majority supports marriage equality. Should he refuse to recognize marriage – only to be overruled by a court – it could make him appear to be an intransigent right-winger in a year in which he is seeking reelection.

UPDATE: Snyder opposes recognition.

Michigan Episcopalians on marriage

Timothy Kincaid

March 25th, 2014

What do you do if the Speakers for Jesus speak words that reflect the message of no Jesus that you know? If you are Episcopal Bishops in Michigan, you take to the papers. (Detroit Free Press)

As Christians, we cannot be silent as our state’s highest laws discriminate against segments of our society based on the personal biases of those in power, particularly when a majority of Michigan’s population now supports marriage equality. To remain silent is to be complicit in the decline of our society through demonizing unprotected minorities, segregation based on sexual preference, denial of benefits to selected groups, and fear-based prejudice. Our continued silence can lead only to further discrimination, bullying and other forms of physical, emotional and spiritual violence.

Amen

About that radical militant activist Judge Friedman

Timothy Kincaid

March 25th, 2014

The National Organization for Marriage (theirs, not yours) has had a rough time of it lately. With loss after loss in courts across the country, financial woes, and staggering shifts in public opinion, they’ve pretty much given up the fight in the US.

Oh, they are still flogging their plans for a Marriage March (as the last one was so effective, snark) but when I went to their website following the Michigan ruling for the predictable rant about liberals and one man in robes overruling the voters, Brian Brown and Co. hadn’t even made a comment. They finally, yesterday, got around to posting the opinion of the local Catholic bishop, but it was just too tame to quote.

So we’ll have to settle for the knowledge that if Brian Brown hadn’t been sobbing under his desk, he’d have served us the usual portion of “radical militant activist judges legislating from the bench”.

So let’s take a look at radical militant activist Judge Friedman. And you already know where this is going, don’t you.

The great gods of irony have long since writ the script on marriage equality decisions. And they’ve decided that despite decades of Republicans campaigning on the idea that they must be elected to appoint true defenders of the constitution, a good many of those jurists who have found that gay people are equally protected by the US Constitution hail from the R side of the judicial pool.

So, of course, for this ruling – the one that tolled the death knell of their last claim to anti-gay “research” – the irony gods pulled out all the stops. Not only is Friedman a life-long conservative Republican with long record of right-side-of-the-aisle perspective on law, he was appointed by the glowing idol of the GOP. (Slate)

Judge Bernard Friedman is from eastern Michigan, where he was an honors student at Michigan State University and did JAG service during Vietnam. He became a reliable conservative jurist and was appointed by President Reagan in 1988.

Someone hand Brian Brown another hanky.

Judge Friedman on Mark Regnerus

Timothy Kincaid

March 25th, 2014

The Michigan trial on the constitutionality of excluding same-sex couples from the rights and responsibilities of marriage was (after Hawaii and California) only the third case to present and try the facts presented by the various sides. And, as such, the ruling by Judge Friedman was important not just for finding the ban unconstitutional but also in its measure of the merits of the arguments presented.

Particularly interesting was US District Court Judge Bernard Friedman’s opinion on the arguments presented by star witness Mark Regnerus, whose “study” comparing children raised in intact heterosexual families to, well, something else, has been touted by anti-gays as their smoking gun.

It’s a bit lengthy, but here it is in its entirety:

In defense of their asserted justifications for the MMA, the state defendants first called sociologist Mark Regnerus. Regnerus’s testimony focused on the results of his 2012 “New Family Structures Study” (“NFSS”), a survey data collection project that was formulated to assess adult outcomes of children who reported that one of their parents had been in a “romantic relationship with someone of the same-sex” during the respondents’ childhood years. Of the 15,000 participants ranging in age from 18 to 39, 248 of them reported that one of their parents had been in such a romantic relationship. From this sample, 175 reported that their mother had a same-sex romantic relationship while 73 reported that their father had been romantically involved with another man. Regnerus then compared the adult outcomes of these two subgroups with another set of participants who were raised by intact biological parents. The outcomes of these groups were significantly different.

Regnerus found that children who reported that their mothers had a same-sex relationship were less likely to pursue an education or obtain full-time employment and more likely to be unemployed and receiving public assistance, more likely to experience sexual assault, more likely to cheat on their partners or spouses and more likely to have been arrested at some point in their past. Similarly, Regnerus discovered that children who reported that their fathers had a same-sex relationship were more likely to have been arrested, more likely to plead guilty to non-minor offenses and more likely to have numerous sexual partners.

Although Regnerus touted the NFSS as one of the few studies to use a large representative pool of participants drawn from a random population-based sample, other sociological and demographic experts, including Rosenfeld and Gates, heavily criticized the study on several grounds. First, it failed to measure the adult outcomes of children who were actually raised in same-sex households. This is because the participants’ household histories revealed that many parental same-sex romantic relationships lasted for only brief periods of time. And many of the participants never lived in a same-sex household at all. Regnerus reported that “just over half (90) of the 175 respondents whose mother had a lesbian relationship reported that they did not live with both their mother and her same-sex partner at the same time.” Id. at 11. Second, many critics voiced their concern that the NFSS made an unfair comparison between children raised by parents who happened to engage in some form of same-sex relationship and those raised by intact biological families. This is because almost all of the children in the former group were the offspring of a failed prior heterosexual union, which produced a significant measure of household instability and parental relationship fluctuation.

Even Regnerus recognized the limitations of the NFSS. In his expert report, Regnerus acknowledged that “any suboptimal outcomes may not be due to the sexual orientation of the parent” and that “[t]he exact source of group differences” are unknown. Defs.’ Ex. 28 at 5. Moreover, of the only two participants who reported living with their mother and her same-sex partner for their entire childhood, Regnerus found each of them to be “comparatively well-adjusted on most developmental and contemporary outcomes.” Id. at 11. Nonetheless, Regnerus testified that there is no conclusive evidence that “growing up in households wherein parents are in (or have been in) same-sex relationships” does not adversely affect child outcomes. Id. at 16.

The Court finds Regnerus’s testimony entirely unbelievable and not worthy of serious consideration. The evidence adduced at trial demonstrated that his 2012 “study” was hastily concocted at the behest of a third-party funder, which found it “essential that the necessary data be gathered to settle the question in the forum of public debate about what kinds of family arrangement are best for society” and which “was confident that the traditional understanding of marriage will be vindicated by this study.” See Pls.’ Motion in limine to Exclude Testimony of Mark Regnerus, Ex. 9. In the funder’s view, “the future of the institution of marriage at this moment is very uncertain” and “proper research” was needed to counter the many studies showing no differences in child outcomes. Id. The funder also stated that “this is a project where time is of the essence.” Id. Time was of the essence at the time of the funder’s comments in April 2011, and when Dr. Regnerus published the NFSS in 2012, because decisions such as Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010), and Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2012), were threatening the funder’s concept of “the institution of marriage.”

While Regnerus maintained that the funding source did not affect his impartiality as a researcher, the Court finds this testimony unbelievable. The funder clearly wanted a certain result, and Regnerus obliged. Additionally, the NFSS is flawed on its face, as it purported to study “a large, random sample of American young adults (ages 18-39) who were raised in different types of family arrangements” (emphasis added), but in fact it did not study this at all, as Regnerus equated being raised by a same-sex couple with having ever lived with a parent who had a “romantic relationship with someone of the same sex” for any length of time. 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 the University of Texas has distanced itself from the NFSS in particular and Dr. Regnerus’s views in general and reaffirmed the aforementioned APA position statement.

Translation: liar, liar, pants on fire.

Michigan Couples Rush County Clerks Offices For Marriage Licenses (Updated)

Jim Burroway

March 22nd, 2014

Couples line up in Ann Arbor for a shot at sixty marriage licenses to be issued today by the Washtenaw County Clerk’s Office. (Photo: Steve Friess)

 

Marsha Caspar, 52, and Glenna DeJong, 53.

News reports are crediting a Lansing couple, Glenna DeJong, 53, and Marsha Caspar, 52, as the first same-sex couple to marry in Michigan this morning after a Federal judge struck down Michigan’s Marriage Amendment (MMA) as unconstitutional late yesterday afternoon. They were married, after twenty-seven years together, shortly after the Ingham County Clerk’s office opened at 8:00 a.m. and issued them a license.

Ingham County was one of a handful of Michigan to open for special hours today specifically to issue marriage licenses to same-sex couples. The other counties where clerks have opened today for special hours included Washtenaw (Ann Arbor), Muskegon (Muskegon, on Lake Michigan) and Oakland (Pontiac).

Michigan Attorney General Bill Schuette has already filed a notice that he was appealing the decision to the Sixth Circuit Court of Appeals, and he filed a separate request to the Sixth Circuit  to stay the lower court’s ruling. The Sixth Circuit has yet to act on the request.

Update: From the Detroit Free Press:

The U.S. 6th Circuit Court of Appeals will not act over the weekend on a stay requested by Michigan Attorney General Bill Schuette in the gay marriage case, the court said in an order posted today.

The court has given the plaintiffs in the case, April DeBoer and Jayne Rowse, until Tuesday to file a response to Schuette’s request for a stay of U.S. District Judge Bernard Friedman’s Friday order declaring Michigan’s voter-approved ban on gay marriage unconstitutional.

More than two hundred couples were able to marry in the four counties which opened their offices today. This notice from the Sixth Circuit Court of Appeals indicates that thousands more will be able to marry beginning on Monday when County Clerks Offices open statewide.

Update: The Sixth Circuit late Saturday issued a temporary stay until Wednesday. Again, from the Detroit Free Press:

The U.S. 6th Circuit Court of Appeals, after first signaling it would not intervene in Michigan’s gay marriage case until Tuesday, posted a new order late Saturday imposing a stay in the case until Wednesday. …

“To allow a more reasoned consideration of the motion to stay, it is ordered that the district court judgment is temporarily stayed until Wednesday,” the 6th Circuit said in an order late Saturday.

About 323 marriage licenses had been issued in four Michigan counties before the Sixth Circuit issued its stay.

Federal Judge Strikes Down Michigan Marriage Ban

Jim Burroway

March 21st, 2014

U.S. District Court Judge Bernard Friedman issued a ruling today striking down Michigan’s ban on same-sex marriage as a violation of the Equal Protection clause of the U.S. Constitution. This ruling marks the ninth federal court victory in a row for marriage equality since the U.S. Supreme Court’s Windsor decision last summer striking down portions of the Defense of Marriage Act.

The Reagan-appointee to the Federal bench heard testimony in the case two weeks ago which featured Mark Regnerus, the author of the widely discredited report alleging that children of same-sex parents have poorer outcomes, as the state’s star witness. His testimony didn’t hold up well under cross examination. What’s more, his own sociology department at the University of Texas issued a statement distancing themselves from Regnerus on the very morning he was set to testify. All that had Judge Freidman devoting two pages of his thirty-one page opinion to Regnerus’s testimony:

The Court finds Regnerus’s testimony entirely unbelievable and not worthy of serious consideration. The evidence adduced at trial demonstrated that his 2012 “study” was hastily concocted at the behest of a third-party funder, which found it “essential that the necessary data be gathered to settle the question in the forum of public debate about what kinds of family arrangement are best for society” and which “was confident that the traditional understanding of marriage will be vindicated by this study.” See Pls.’ Motion in limine to Exclude Testimony of Mark Regnerus, Ex. 9. In the funder’s view, “the future of the institution of marriage at this moment is very uncertain” and “proper research” was needed to counter the many studies showing no differences in child outcomes. Id. The funder also stated that “this is a project where time is of the essence.” Id. Time was of the essence at the time of the funder’s comments in April 2011, and when Dr. Regnerus published the NFSS in 2012, because decisions such as Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010), and Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2012), were threatening the funder’s concept of “the institution of marriage.”

The primary funder was the the anti-gay Witherspoon Institute, which provided $695,000 for the study. The Bradley Institute kicked in another $90,000. Anti-gay activist Robert George sits on the board of directors of both organizations, as well as the editorial advisory  board of the LDS-owned Deseret News, which was the only paper to receive an advance copy of the study.  The study had been fast-tracked to publication by the conservative editor of the journal Social Science Research. Judge Friedman found the study’s funding source was at least partly behind the study’s appalling methodology:

While Regnerus maintained that the funding source did not affect his impartiality as a researcher, the Court finds this testimony unbelievable. The funder clearly wanted a certain result, and Regnerus obliged. Additionally, the NFSS is flawed on its face, as it purported to study “a large, random sample of American young adults (ages 18-39) who were raised in different types of family arrangements” (emphasis added), but in fact it did not study this at all, as Regnerus equated being raised by a same-sex couple with having ever lived with a parent who had a “romantic relationship with someone of the same sex” for any length of time. 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 the University of Texas has distanced itself from the NFSS in particular and Dr. Regnerus’s views in general and reaffirmed the aforementioned APA position statement.

Regernus’s testimony was part of a larger argument that the state of Michigan tried to make in support of the ban on same-sex marriage. Attorneys for the state based much of their case on what they called the “optimal environment” for raising children. Judge Friedman found that position “absurd”:

[T]he state defendants’ position suffers from a glaring inconsistency. Even assuming that children raised by same-sex couples fare worse than children raised by heterosexual married couples, the state defendants fail to explain why Michigan law does not similarly exclude certain classes of heterosexual couples from marrying whose children persistently have had “sub-optimal” developmental outcomes. According to Rosenfeld’s study, children raised by suburban residents academically outperformed those children raised by rural and urban residents. Likewise, “middle class and poor families are ‘sub-optimal’ compared to well-off families, and couples with less formal education are “sub-optimal” compared to couples with more formal education.” Pls.’ Ex. 31 at 5. A child’s racial background is another predictive indicator of future success, as the study showed that “the probability of making good progress through school is greater in the U.S. for children of Asian descent than for children of all other racial groups.” Id. Taking the state defendants’ position to its logical conclusion, the empirical evidence at hand should require that only rich, educated, suburban-dwelling, married Asians may marry, to the exclusion of all other heterosexual couples. Obviously the state has not adopted this policy and with good reason. The absurdity of such a requirement is self-evident. Optimal academic outcomes for children cannot logically dictate which groups may marry.

The state also argued that any changes to the institution of marriage should “proceed with caution” before opening it up to same-sex couples. Judge Friedman found that argument “not persuasive”:

But the calculus is fundamentally altered when constitutional rights are implicated because “any deprivation of constitutional rights calls for prompt rectification.” Watson v. Memphis, 373 U.S. 526, 532-533 (1963). “The basic guarantees of our Constitution are warrants for the here and now and, unless there is an overwhelmingly compelling reason, they are to be promptly fulfilled.” Id. The state may not shield itself with the “wait-and-see” approach and sit idly while social science research takes its plodding and deliberative course. Were the Court to accept this position, “it would turn the rational basis analysis into a toothless and perfunctory review” because “the state can plead an interest in proceeding with caution in almost any setting.” Kitchen v. Herbert, No. 13-217, 2013 U.S. Dist. LEXIS 179331, at *77 (D. Utah Dec. 20, 2013).  Rather, the state must have some rationale beyond merely asserting that there is no conclusive evidence to decide an issue one way or another. See Perry, 704 F. Supp. 2d at 972 (quoting Romer for the proposition that “[e]ven under the most deferential standard of review . . . the court must ‘insist on knowing the relation between the classification adopted and the object to be attained.’”). Since the “wait-and-see” approach fails to meet this most basic threshold it cannot pass the rational basis test.

The state also argued that it had a legitimate interest in upholding “tradition and morality”:

The difficulty with this justification is two-fold. First, the Supreme Court has held that tradition alone does not satisfy rational basis review. See Heller v. Doe, 509 U.S. 312, 326 (1993) (stating that the “[a]ncient lineage of a legal concept does not give it immunity from attack for lacking a rational basis.”). Second, traditional notions of marriage are often enmeshed with the moral disapproval of redefining marriage to encompass same-sex relationships. On this point, many federal courts have noted that moral disapproval is not a sufficient rationale for upholding a provision of law on equal protection grounds. See Massachusetts v. U.S. Dept. of Health and Human Servs., 682 F.3d 1, 15 (1st Cir. 2012) (invalidating section 3 of the Defense of Marriage Act because the  statute expressed a moral disapproval of homosexuality)…

And finally, in the throw-all-the-spaghetti-against-the-wall-to-see-what-sticks strategy of the state’s attorneys, they argued that marriage was solely a state question, and they even tried to cite Windsor to support that argument:

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,” id. (citing Loving) (internal quotations omitted), and that “[t]he states’ interest in defining and regulating the marital relation [is] subject to constitutional guarantees . . .” Id. at 2692. These statements are not merely surplusage, and as one district astutely remarked, “[a] citation to Loving is a disclaimer of enormous proportion.” Bishop, 2014 U.S. Dist. LEXIS 4374, at *66.

…Taken together, both the Windsor and Loving decisions stand for the proposition that, without some overriding legitimate interest, the state cannot use its domestic relations authority to legislate families out of existence. Having failed to establish such an interest in the context of same-sex marriage, the MMA cannot stand.

Because Judge Friedman did not issue a temporary stay against his ruling, there had been reports now that an unknown number of clerk offices in Michigan are re-opening to begin issuing marriage licenses to same-sex couples. So far, it appears that the ruling came down after most of the county clerk offices had closed. Unless some of them open for special hours this weekend, the earliest that anyone will be able to marry will be Monday morning.

Meanwhile, Michigan Attorney General Bill Schuette has already filed a notice that he was appealing the decision to the Sixth Circuit Court of Appeals. In a separate filing, he asked the Sixth Circuit  to stay the lower court’s ruling.

 

Michigan Gay Marriage Ban Trial Ends With A Bang

Jim Burroway

March 7th, 2014

So this happened:

Michigan’s gay marriage trial ended on an explosive note today, with the state’s final witness saying he believes unrepentant homosexuals are going to hell.

His views emerged following a question from plaintiffs attorney Ken Mogill, who is fighting to overturn Michigan’s ban on gay marriage.

“Is it accurate that you believe the consequence of engaging in homosexual acts is a separation from God and eternal damnation?” Mogill asked the state’s expert, then added, “in other words, they’re going to hell?”

“Without repentance, yes,” answered the expert, Canadian economist Douglas Allen, the last witness to testify on behalf of the state in a trial that could make Michigan the 18th state to legalize gay marriage.

Things didn’t go well at all for the State of Michigan, which is defending the ban in Federal Court. The State’s first witness, a philosopher from Princeton, was disqualified as an expert witness. That testimony was supposed to tee-up Mark Regnerus, the author of the widely discredited report alleging that children of same-sex parents have poorer outcomes, to take the stand for the first time since the report’s publication. But just before Regnerus took the stand, his colleagues at the Department of Sociology at the University of Texas issued a statement distancing themselves from his testimony:

Like all faculty, Dr. Regnerus has the right to pursue his areas of research and express his point of view.  However, Dr. Regnerus’ opinions are his own. They do not reflect the views of the Sociology Department of The University of Texas at Austin.  Nor do they reflect the views of the American Sociological Association, which takes the position that the conclusions he draws from his study of gay parenting are fundamentally flawed on conceptual and methodological grounds and that findings from Dr. Regnerus’ work have been cited inappropriately in efforts to diminish the civil rights and legitimacy of LBGTQ partners and their families.  We encourage society as a whole to evaluate his claims.

That set the stage for Regnerus’s testimony:

Critics said Regnerus’ 248-person study included just two who had been raised from birth to adulthood by gay couples. When asked Monday how those two fared, Regnerus replied, “Pretty good.”

On Tuesday, (ACLU attorney Leslie) Cooper asked Regnerus how big a study would need to be to satisfy his curiosity about child welfare and how much it would cost. He said it would cost tens of millions of dollars over several years. Cooper asked whether he believed such funding could be approved, and Regnerus said it was unlikely.

“So,” Cooper asked, “if a nationally representative, large-scale longitudinal study is never done because it’s too expensive, is it your opinion that same-sex people should never be allowed to marry?”

Refusing to answer that question, Regnerus deflected into mumbo-jumbo about “common expectations about marriage.” He was also asked about other types of families: poor families, less educated families, remarried families, where statistics also show poorer outcomes in children. Should they be barred from marrying for the same reasons?

Regnerus said no regarding the poor and less educated, but said he didn’t have an opinion about heterosexual remarriage.

“You don’t have an opinion whether prior divorced people should be allowed to get married?” Cooper asked.

“It exists,” he said. “I don’t think much about that … I think it would be nice if (couples) can work it out.”

Regnerus also insisted he hadn’t formed an opinion on whether it is better for a child in foster care to remain in a foster home or be adopted by a same-sex couple.

Throughout the proceedings, Regnerus stuck to his insistence that biological, intact families are best and that anything else, including adoption, is “a concession.”

It was an excruciating grilling, which the free-lance reporter, Steve Friess, live-tweeted on Monday and Tuesday:

Caught Regnerus leaving courtroom. Seemed rattled. Asked how he felt, he said, "Relieved." Were you nervous? "No comment." Walked away.

Friess is back live-tweeting closing arguments today, this time for Buzzfeed.

Michigan GOP leadership rebuffs Agema

Timothy Kincaid

December 13th, 2013

Two years ago, Michigan Representative Dave Agema (R – Grandville) sponsored a bill called the Public Employee Domestic Partner Benefit Restriction Act (real name) which was designed to do exactly that: probit the government closest to the people (cities, counties, library commissions) from enacting protections for the people (firemen, assessors, librarians). Specifically, it provided that “a public employer shall not provide medical benefits or other fringe benefits for an individual currently residing in the same residence as an employee of the public employer” unless they were the opposite sex.

And being a pretty despicable bunch, the Michigan GOP representatives passed it with a party-line vote (plus one Democrat) and Governor Rick Snyder signed the bill into law.

As the bill was an obvious violation of the US Supreme Court decision in Romer v. Evans, this June a judge issued an injunction against its implementation. It is assumed that the bill is dead.

Well now Dave Agema is not longer in the state legislature. But at last year’s GOP state convention, the party decided that he was an ideal representative to send to the Republican National Central Committee, ousting their former party chair who had been a national RNC candidate but, apparently, just wasn’t batpoop nuts enough.

So now they have Dave Agema making news by trotting off to the Berrien County Republican Party Holiday Reception this week, and saying the following:

… I stand for traditional marriage, not homosexual ones. (audience applause) … the basic unit of government in society.

“When you tear the family apart, you tear the country apart. I worked with these individuals for almost 30 years with American (Airlines). I know what they do. I know what happened to American Airlines when San Francisco said we could not land in San Francisco and do business with American Airlines unless we paid same sex unmarried benefits.

“The pilots said, ‘Bologna. Don’t go there anymore.’

“Can’t do it. Too big a market. Can’t do it. Well, what happened? Say me and, what’s your name again, first name? Martha. I’m a flight attendant. You have AIDS. You come to me and say, ‘hey, tell them I’m your lover for the last six months.’ You get on our health care. American Airlines spends $400,000 before you die of AIDS. And he goes on to the next, and the next, and that’s what was happening.

“Folks, they want free medical because they’re dying between 38 and 44 years old. It’s a biggie. So, to me it’s a moral issue. It’s a Biblical issue. Traditional marriage is where it should be and that is in our platform, so people that are opposed on that issue within our party are wrong. It’s in our platform. (audience applause)”

Well that there’s a whole lot of crazy. Not a word of fact, but a great big serving of hot juicy crazy hate ladled over a holiday pastry. And the Berrien County GOP biddies just lapped it right up, burped, and asked for more.

But outside the context of hardcore party extremists in county committees, crazy hate just doesn’t sell very well anymore. And as his statements started hitting the blogs, normal folk were a bit shocked.

And though the party joyfully voted for the bill generated by Agema’s radical hatred, now the Michigan GOP politicians have began backpedaling. (MLive)

House Speaker Jase Bolger, R-Marshall, said Wednesday that he respects religious beliefs that may not make room for gay marriage. “But I do not respect, and frankly am disgusted by, anyone who demonizes someone because of their sexual orientation,” he continued.

Senate Majority Leader Randy Richardville, R-Monroe, said he had not heard Agema’s comments directly but had picked up on the basic tenor.

“He’s not speaking on behalf of me, or I think most of the people who call themselves Republicans, when he says stuff like this,” said Richardville. “It’s not the first time. Hate isn’t one of my values.”

Naturally, Log Cabin called for his resignation. Jason Watts, secretary of Allegan County’s Republican Party, has drafted a resolution that the state party (which meets this weekend) disavow those who “espouse demagogic rhetoric that is incendiary and unbecoming of civil discourse.”

And the Governor, who signed the anti-gay bill two years ago, now rebuffs Agema’s agenda. (MLive)

Snyder, the state’s top ranking elected Republican, “feels comments like that are unfortunate, discriminatory and that we can and must do better and make sure everyone is treated with respect and dignity,” spokesman Sara Wurfel told MLive.

Wurfel was even more direct with the MIRS subscription news service, calling Agema’s remarks “extreme” and saying that there “shouldn’t be room for that in any political party, period.”

Just a week ago I discussed how the extra-special brand of crazy right-wing nutcases can be useful. And Agema is proving to be particularly so.

Michigan Republicans are seriously considering updating Michigan’s Elliott-Larsen Civil Rights Act to include anti-discrimination protections for gays and lesbians. And Agema’s outburst couldn’t come at a better time.

This gives GOP members on the fence a clear choice, do they want to move along with the rest of the country in the direction of inclusion, respect, and equality, or do they want, like Dave Agema, to stay a pretty despicable bunch? Do they think that protecting gay employees in Michigan would result in Agema’s bizarre pipe-dream or to they reject his blatant bigotry?

Thanks to Dave Agema, they know that their constituents will be paying close attention.

Federal Judge Sets February Trial Date for Michigan Marriage Ban Lawsuit

Jim Burroway

October 16th, 2013

Federal District Court Judge Bernard A. Friedman turned down requests to issue a summary judgment either for or against the constitutionality of Michigan’s ban on marriage and adoption by same-sex couples. A lesbian couple who, between them, have adopted three special needs children, had asked the court to declare the state’s constitutional ban, which was approved  by Michigan voters in 2004, unconstitutional under the Federal constitution. There had been widespread expectation that Judge Friedman would rule on the ban’s constitutionality. A trial date has been set for February 25.

ACLU Announces Three Marriage Lawsuits

Jim Burroway

July 9th, 2013

Fresh off its victory in Windsor v. U.S. which struck down Section 3 of the Defense of Marriage Act as unconstitutional, the ACLU’s is filing three more lawsuits, in Pennsylvania, North Carolina and Virginia. In Whitewood v. Corbett, the ACLU is challenging Pennsylvania’s statute which bans same-sex marriage. In Fisher-Borne v. Smith, the ACLU will amend its lawsuit seeking adoption rights to include the right to marriage. In the Virginia case, the ACLU and Lambda Legal are still in the planning stages, with plaintiffs and precise details of the case still being worked out. They expect to file that lawsuit later this summer.

Meanwhile, the ACLU and the National Center for Lesbian Rights have filed a motion with the New Mexico Supreme Court, asking it to order state officials to allow same-sex couples to marry. State law is currently silent on the question. Other lawsuits are working their way through Arkansas, Hawaii, Illinois, Nevada, New Jersey and Michigan.

Michigan has its first same-sex marriage

Timothy Kincaid

March 15th, 2013

NBC

The head of an American Indian tribe in Michigan signed a law approving same-sex marriage on Friday, joining at least two other tribes nationwide in doing so, then immediately wed a gay couple who had been together for 30 years but never thought they would see this day come.

Dexter McNamara, chairman of the 4,600-member Little Traverse Bay Bands of Odawa Indians in northern Michigan, wed Tim LaCroix, 53, and Gene Barfield, 60, of Boyne City. After McNamara read the couple’s vows and led the ceremony in English, a member of the tribe followed and conducted a traditional tribal ceremony in their language before dozens of wellwishers.

While the Little Traverse Bay Bands comes third in the list of Indian Nations, it is an important addition.

The impact of the Little Traverse Bay decision was unclear, though Fletcher said he thought it would carry weight with other tribes. Little Traverse Bay Bands was an influential, average-sized tribe that has been, along with some other Michigan tribes, “very much in the forefront of some good progressive tribal governance measures in the last couple decades.”

“We’ve been a role model, I think, for the federally recognized tribes of Michigan and it seems like we’re out in front — and not taking anything away from the other federally recognized tribes — but, you know, it seems like we kind of opened the door for other tribes and I think other tribes will follow,” he said.

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