Friday, March 28, 2014

152.1 - Good News: Michigan is the latest to fall

Good News: Michigan is the latest to fall

I'm going to start, as I always try to do, with some good news. This week, the good news comes out of Michigan.

Last Friday, March 21, US District Court Judge Bernard Friedman struck down Michigan's state constitutional ban on same-sex marriage, ruling, as several other federal judges have recently, that such a ban violates the US Constitution's requirement for equal protection under the law.

Friedman refused to stay the effect of his decision, allowing some same-sex couples to begin getting married last Saturday. Clerks in at least four Michigan counties issued more than 300 marriage licenses and presided over more than 100 weddings before a Appeals Court granted a temporary stay, putting a halt to further weddings.

At a hearing on Wednesday, March 26, the Appeals Court extended that stay to cover the time needed for the state to appeal Judge Friedman's decision. It's actually pretty typical for such stays to be issued; in fact, it usually would be done by the trial judge, so the ruling comes as no surprise.

What was interesting is that it was a split 2-1 decision. The majority relied on the fact that the Supreme Court had stepped in to issue a stay on an earlier case out of Utah and so decided that, okay, that's what we have to do. But the dissenting judge noted that the Supreme Court had issued the stay without comment, so there is no actual legal guidance for the Appeals Court to follow. So she applied a traditional four-factor test and said on that basis that she would have denied the request for the stay. What's interesting is that one of those factors involves "a strong or substantial likelihood of success on the merits," that is, the likelihood of winning on appeal - which means that she was saying that based on the record to date she believes there is little chance that Michigan will succeed in getting Judge Friedman's order overturned. Which is itself good news.

Speaking of that decision, it was a keeper. I talked about this case three weeks ago. It's an important one because those trying to defend the indefensible tried a new tack. The administration of Michigan Governor Rick Snidelywhiplash apparently realized the arguments other states have used, which pretty much came down to "we've always done it this way" and "same-sex marriage is icky," weren't going to fly. So they argued that it was all about the welfare of children, claiming that kids thrive best when raised by a married mommy and daddy, so same-sex marriages can and should be banned.

Beyond being an obvious non sequitur, I said in discussing the case that
one obvious and should be fatal flaw in [the state's argument] is that the presence or lack of children or of the intent to be parents has never been related to recognition of the right to get married.
Judge Friedman made the same point in his ruling, saying that the state's arguments are "belied" by its own marriage requirements, which, he wrote,
do not include the ability to have children, a requirement to raise them in any particular family structure, or the prospect of achieving certain "outcomes" for children.
I also noted that
Michigan's case was not helped by the fact that one of its two key witnesses was sociologist Mark Regnerus ... whose claim to have shown that children are better off with opposite-sex parents than with same-sex parents has been dismissed by the America Sociological Association as fundamentally flawed....
Friedman was ever harsher, calling Regnerus’s testimony "unbelievable and not worthy of serious consideration" and that his study "was hastily concocted at the behest of a third-party funder" who "clearly wanted a certain result, and Regnerus obliged." Friedman labeled Regnerus’s contention that the source of the funding did not affect his impartiality as a researcher, "unbelievable."

Which means, ultimately, that this was double good news: The decision was not only a blow for marriage justice, not only a blow in favor of same-sex couples, but also a blow in favor of same-sex parents, as Friedman declared that "the evidence adduced at trial disproved [the] premise" that children in same-sex households fare any worse than children in opposite-sex households.

In his conclusion, Judge Friedman wrote:
In attempting to define this case as a challenge to “the will of the people,” state defendants lost sight of what this case is truly about: people. ... Today’s decision ... affirms the enduring principle that regardless of whoever finds favor in the eyes of the most recent majority, the guarantee of equal protection must prevail.
Right on, my brother.


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