Hearing set for Mich. same-sex marriage case

A challenge to Michigan's 2004 constitutional amendment banning same-sex marriage faces a hearing in federal court Wednesday, Oct. 16, and among those awaiting a decision is Wayne State University Law School Distinguished Professor Robert Sedler.

Sedler is a consultant to attorneys Dana Nessel, a 1994 Wayne Law graduate, and Carole Stanyar, who represent Hazel Park residents April DeBoer and Jayne Rowse. The lesbian couple challenged the voter-approved amendment so they can marry legally and thus have joint custody of their three adopted children. Michigan law allows single people to adopt but not an unmarried couple, so the women's children are limited to one parent unless DeBoer and Rowse can wed legally.

Sedler of Southfield was consulted in their case because of his world-wide reputation as a constitutional law expert and because of a 2004 essay (50 Wayne Law Review 835) he wrote, "The Constitution Should Protect the Right to Same-Sex Marriage."

"I contend that the Equal Protection Clause should be interpreted by the Supreme Court to prohibit the state from discriminating against same-sex persons by denying them the right to enter into the legal relationship of marriage," the professor wrote.

The Michigan women's legal challenge was filed in 2012, prior to the U.S. Supreme Court's June 26 decision, which struck down part of a federal law that denied benefits to married same-sex couples. But that decision could have an impact on the women's case, in which a decision is expected soon from U.S. District Judge Bernard Friedman.

The judge cited the Supreme Court decision in July, when he denied the state of Michigan's motion to dismiss the women's case. And he, like Sedler, mentioned the Equal Protection Clause in his opinion.

"The Supreme Court has just invalidated a federal statute on equal protection grounds because it 'placed same-sex couples in an unstable position of being in a second-tier marriage,'" Friedman wrote. "Moreover, and of particular importance in this case, the justices expressed concern that the natural consequences of such discriminatory legislation would not only lead to the regulation of same-sex relationships to a form of second-tier status, but impair the rights of 'tens of thousands of children now being raised by same-sex couples' as well. This is exactly the same type of harm plaintiffs seek to remedy in this case."

The state attorney general's office argues that Michigan voters approved the 2004 same-sex marriage ban and that legally states have the right to define marriage. Friedman has allowed other interested parties to file arguments in the case. The parties include the Michigan Family Forum and Michigan Catholic Conference, both of which support the state's argument.

Sedler said he won't predict an outcome in the case, but he is hopeful that the U.S. Supreme Court's decision will lead the way for Michigan.

Published: Wed, Oct 9, 2013