By Jo Mathis
Legal News
The legalization of same-sex marriage in Michigan is inevitable, experts said during a panel discussion on the topic held recently at the Thomas M. Cooley Law School’s Ann Arbor campus in honor of Constitution Day.
Panelists addressed the pending DeBoer v. Snyder case which raises two Constitutional issues: the 2004 Michigan Marriage Amendment, which bars recognition of same-sex relationships in Michigan, and the Michigan Adoption Code, which prevents non-married couples from jointly adopting children.
Detroit attorney Dana Nessel, lead plaintiff’s counsel in the case, called it the biggest civil rights case in Michigan in modern times.
She talked about the history of the case, and what a boost it was when the Supreme Court overturned the Defense of Marriage Act (DOMA), because at the same time, Chief Justice Anthony Kennedy veered off from the topic of taxes and federal benefits (which was at the heart of United States v. Windsor) to write about same sex families and children
“I knew that was for Judge (Bernard) Friedman,” she said, referring to the U.S. District Court judge who ordered the DeBoer case to proceed after the Supreme Court struck down DOMA. “I felt it pertained to our case specifically.”
She said she hopes Friedman will strike down the ban on same sex marriage. And when that occurs, she expects the case will be appealed down to the Sixth Circuit Court in Cincinnati.
“They’re not going to roll over on this,” she said.
But she said ultimately—if nothing happens to Justice Ruth Bader Ginsburg—there will be five votes in the Supreme Court to decide in her favor.
In closing, Nessel told the students that she had been an unremarkable C-plus student at Wayne Law School, and she’s lost a lot of cases in her career.
But she’s always tried her hardest to fight for things she believes in. And while many people told her not to take on the DeBoer case, she would “bet the house” this one will end in victory.
“Don’t let anyone ever tell you to stop fighting for justice,” she said.
Nate Goetting, an associate professor of criminal justice & jurisprudence and occasional adjunct professor at Cooley, explained that the fusion of the following legal principles makes gay marriage a fundamental right:
• Marriage is a socially valuable institution. The Supreme Court has also shown a special reverence for marriage, especially in its 19th century cases, as a positive social good.
• The right to marry, and to marry whom you choose, is a fundamental right and a necessary aspect of human happiness and has been an abiding principle since the Warren court, Goetting said.
• Gay people are both actually gay and actually people. “They aren’t just straight people behaving badly,” said Goetting.
Because the Supreme Court regards marriage as socially valuable, the freedom to choose whom one marries as fundamental, and gayness as an essential attribute of personhood, gays will eventually enjoy the right to marry, he said.
Goetting said Justice Kennedy sees homosexuality not as an act, but as something innate to one’s identity, and gay sex as an expression of a kind of love that has value because the people who share it have value.
“Justice Kennedy, once the great hope of the Reagan administration after the failed Bork and Ginsburg nominations, will go down in history as the court’s great gay rights champion,” Goetting said. “His opinions are to homophobia what the first Justice Harlan’s were to racism, only Kennedy’s aren’t written in dissent. He writes for a court, and a nation, that has undergone a sea change over the past 20 years.”
The watchword for Kennedy, he said, is dignity.
Goetting said the overturning of DOMA in U.S. v. Windsor will eventually be eclipsed by a more definitive and profound constitutional case that finally ends the current system of two-tiered marriages by establishing the fundamental right for gays and lesbians to marry under the Due Process and Equal Protection clauses of the Constitution.
It will be Deboer v. Snyder or a case like it, he said.
“At this point,” Goetting said, “it’s only a question of when and how embarrassed future generations will be by the delay.”
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