Michiganers May Marry

Another day, another state marriage ban on same-sex marriage falls.  This time, the case, DeBoer v. Snyder, from Michigan.  The legal portion of the opinion is not particularly groundbreaking albeit emotionally compelling.  Judge Bernard Friedman (a Reagan appointee, not that it matters) struck down the law based on a rational basis review under the Equal Protection Clause.  Other courts have been more groundbreaking legally or have interpreted United States v. Windsor more expansively, but Judge Friedman’s opinion is just as important, although for a completely different reason.

Until now, every post-Windsor victory has come via summary judgment, or in the case of Texas, preliminary injunction.  This means that none of those cases has gone to trial.  DeBoer however, did go to trial, and the reason for that is because unlike the other cases, DeBoer actually predates the Supreme Court’s Windsor decision.  Originally DeBoer was about adoption rights.  The lesbian plaintiffs–who are a couple–could not jointly adopt their three children because Michigan law allows only married couples to jointly adopt, and same-sex couples cannot marry under the Michigan constitution.  The plaintiffs, when they initially went to court, were concerned only about adoption not marriage.  Judge Friedman concluded that the plaintiffs were making the wrong argument.  He offered the plaintiffs the chance to amend their complaint to challenge the state’s marriage ban, which they did.  Michigan filed to dismiss the complaint, and Judge Friedman put the case on hold until after the Supreme Court handed down Windsor.

Following Windsor, Judge Friedman concluded that he could not just grant summary judgment to either side.  Therefore, he ordered a trial to be fast tracked.  After this decision, federal courts in Utah, Oklahoma, Virginia, Texas, Kentucky, and Ohio all struck down state marriage bans in part or in total.  I suspect (but cannot prove) that had the summary judgment motions in DeBoer been considered after other post-Windsor decisions, Judge Friedman would have also issued summary judgment.  Judges are conservative creatures by nature, and when there is no precedent (like, for example, four or five other federal judges striking down marriage bans on preliminary motions), they are more likely to act methodically.  In this case, “methodically” meant a full trial in which both sides brought in expert witnesses.

What makes the Michigan case so important however, is the trial itself.  Trials are slow, frustrating, and boring.  Yet, now when these cases finally reach the Supreme Court there will be a record of a neutral arbiter hearing the actual evidence and deciding accordingly.  Appellate courts hear the law, but the fact finder (usually the jury, but in this case the trial judge) hears the facts, which the appellate court almost never touches.  In this case, Michigan’s entire argument was based around a belief that marriage should be limited to heterosexual couples because children do better in homes with a mother and a father.  Judge Friedman found the evidence presented at trial did not support this argument.  Ergo, Michigan had no legitimate reason to ban same-sex marriage (the test for rational basis review).  While an appellate court may say that Judge Friedman somehow misapplied the law, that court will almost certainly not dispute his findings.  In other words, no future opinion in this case will look at the record and conclude that heterosexual couples make better parents.  Which means that Michigan’s central argument will not hold water.

~*~*~*~*~*~*~*~*~*~.

DeBoer was not the first trial in which a state constitutional amendment was adjudicated (and struck down).  The Prop 8 case also went to trial, although because of its procedural issues, the Supreme Court never addressed the substance of the case.  That will not happen here; Michigan will fight until the end.

Back when Prop 8 was being litigated, supporters of same-sex marriage had mounds of evidence on their side whereas opponents were caught pretty much flat-footed.  Their expert witnesses were terrible on the stand, and for good reason; few of them were anything remotely like experts.  None of them held up under David Bois’s ruthless cross-examination.  One of opponents’ witnesses, David Blakenhorn, has even since reversed his position and now supports marriage equality.

Following their humiliation in California, right-wing institutes, most prominently the Heritage Foundation, commissioned a series of studies in which data was manipulated so as to appear that children who grow up in same-sex households suffer as compared to their peers.  Unsurprisingly, the authors of these studies had a not-very-hidden religious and conservative agenda.  The most infamous of these studies was authored by University of Texas sociologist (and arch-Catholic) Mark Regnerus.  His study, the New Family Structures Study (“NFSS”), was designed with litigation (specifically Supreme Court litigation) as the ultimate goal.  Almost from the moment the NFSS was published, it was attacked for its faulty methodology and disingenuous conclusions.  Regnerus’s own university condemned his study (and did so again on the eve of his testimony in Michigan).  The journal that published the NFSS commissioned an internal audit following the outcry and concluded that the study should not have been published at all.  Nevertheless, equality opponents trumpeted the NFSS and groomed Regnerus for trial.  (The same criticism is true about all the studies from all the state’s expert witnesses, and Judge Friedman dismissed them all accordingly.)

At trial, Regnerus and all of the other state’s experts folded under the intense questioning of ACLU attorney Leslie Cooper.  Regnerus in particular was absolutely humiliated on the stand.  Nathaniel Frank wrote a great summation of how Cooper tore apart Regnerus.  For my own part, from following the trial and reading the background, I suspected that this trial could only come out in favor of the lesbian plaintiffs.  Therefore, I was–for the first time–less interested in the law than in the facts of the case, which I usually skip altogether.  In particular, I eagerly awaited Judge Friedman’s take on Regnerus and his study.

I was not disappointed.  Judge Friedman did not just disregard the NFSS, he (there is only one to say this) tore Mark Regnerus a new asshole.  I highly recommend the entire opinion, but in particular the section on Regnerus is pure gold and must be highlighted.

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.”  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.  The funder also stated that “this is a project where time is of the essence.”  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, and Windsor v. United States, [ed: these are the trial court decisions, not the Supreme Court decisions] 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 [American Psychological Association] position statement.

DeBoer v. Snyder, Slip Opinion, pages 13-14.  (Citations omitted, but the scare quotes around “study” are directly from the opinion.)  Judge Friedman flat-out called Regnerus a liar and a hack, which is a strong accusation for a judicial opinion, especially one of such import.  Regnerus’s reputation was weak before, but now it is in complete tatters.  In the legal world, he is persona non grata.

The reason DeBoer is so important is that this trial highlighted the best arguments the anti-equality forces could muster, and now they have run out of time.  Marriage equality had previously won on the law; now it has indisputably won on the facts too.  Full marriage equality is a matter of when not if.  And as a happy coda, Judge Friedman did not stay his decision.  As of Saturday March 22, 2014, the day after the decision, same-sex marriage comes to Michigan as four counties have announced they will start issuing licenses (until a stay is inevitably issued).

[Update: The Sixth Circuit issued a stay Saturday afternoon after 300 couples married.]

Finally, the plaintiffs reading the decision:

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