Michigan's ban on same-sex marriage treats gays as second-class citizens and should be overturned, an attorney representing a lesbian couple argued Tuesday at the start of the latest legal challenge to such laws.
The case is being closely watched for more than its central argument that a state can ban same-sex marriage if its voters chose to pass such a constitutional amendment. The case also will focus on some claims that having parents of the same sex is bad for the children.
Seventeen states and the District of Columbia allow same-sex marriage. In recent weeks, federal judges in Utah, Oklahoma and Virginia have struck down such bans, setting up the issue to be decided by the U.S. Supreme Court. In addition, attorneys general in several states have refused to defend their state bans, a decision that was backed in theory by the U.S. Atty. Gen. Eric H. Holder Jr. in a speech Tuesday to his counterparts on the state level.
The Michigan case is the first since 2010 in California to deal with the role of same-sex parents.
The case involves two Detroit-area nurses, April DeBoer and Jayne Rowse, who say that a 2004 state constitutional amendment, passed by about 59% of those voting, violates the plaintiffs' rights under the Equal Protection Clause of the U.S. Constitution. The couple sued in 2012 to overturn a state law that bars them from jointly adopting each other's children, but U.S. District Judge Bernard Friedman asked them to add the same-sex marriage ban to their suit.
"Nothing says family like a marriage license," DeBoer told reporters, entering the Detroit federal courthouse and holding hands with Rowse, her partner of eight years.
They walked past more than a dozen people who marched quietly on the sidewalk with signs declaring, "We support traditional marriage. One man, one woman."
One of the arguments for traditional marriage has been that a family headed by a man married to a woman has advantages in rearing children and that the state has an interest in defining marriage as a heterosexual union in order to protect children. In the California case, social scientists who argued that position were deposed and vigorously cross-examined, but never testified in court.
When he struck down Proposition 8, the California amendment limiting marriage to a man and a woman, U.S. District Court Judge Vaughn R. Walker noted that he had heard "no reliable evidence that allowing same-sex couples to marry will have any negative effects on society."
But some researchers who dispute that are expected to testify during the trial, which could take two weeks. Mark Regnerus, a sociologist at the University of Texas, published a study in an academic journal in 2012 saying young adults with a parent who had a same-sex relationship were more likely to experience unemployment and other social woes. The work has been attacked by other social scientists.
The first witness called on Tuesday was David Brodzinski, a former Rutgers University psychologist specializing in forensic psychology, adoption and foster care. He testified that there is "no evidence" that a child needs both a male and female parent.
"Gender is not the key, but the quality of the parenting," he said, according to news reports from the courtroom. "This is only true as long as the parents have key characteristics, such as harmony between them and creation of a warm, loving environment," he said. "Moms and dads are important as parents, not as men and women."
"No other group in society has to pass a parental competency test before they're allowed to marry," attorney Carole Stanyar, who represents the Michigan couple, said in an opening statement. "We would like this to be the last trial in America where same-sex couples have to defend themselves."
Stanyar said the trial is about marriage equality and the well-being of children. We have a "rare opportunity" to change two laws "that hurt people so deeply," she told the judge, referring to the marriage and adoption points. "Marriage is central to life in America," providing economic strength, security and stability.
Assistant Atty. Gen. Kristin Heyse defended the Michigan ban and urged that it be left intact. "This case is about one thing: The will of the people," Heyse said. "This was not the whim of a few."
In June, the U.S. Supreme Court threw out part of the federal Defense of Marriage Act, which denied same-sex couples federal benefits that are available to heterosexual couples. A separate decision allowed same-sex marriage in California.
The action by the top court has set off a wave of legal battles over states' right to define marriage. It also led to Democratic attorneys general, including those in Virginia, Pennsylvania, Oregon and Nevada, to decline to defend same-sex marriage bans that have been challenged in court in their states.
Holder, in his comments at the winter meeting of the National Assn. of Attorneys General, defended those decisions by state officials. He cited his own action in refusing to defend DOMA.
"Any decisions — at any level — not to defend individual laws must be exceedingly rare," Holder said. "And they must never stem merely from policy or political disagreements, hinging instead on firm constitutional grounds.
"But in general, I believe we must be suspicious of legal classifications based solely on sexual orientation," he continued. "And we must endeavor — in all of our efforts — to uphold and advance the values that once led our forebears to declare unequivocally that all are created equal and entitled to equal opportunity."