Monday, November 10, 2014


Original Story:

The Michigan couple at the center of the same-sex marriage debate vowed Thursday to "continue the fight" after a federal appeals court in Cincinnati upheld the state's gay marriage ban.

"We're going to fight for the rights of our children and do whatever it takes to ensure our children have rights here in Michigan," April DeBoer, one of the plaintiffs in the case, said during a press conference Thursday evening surrounded by a room of supporters in Ferndale.

The U.S. 6th Circuit Court of Appeals also upheld laws prohibiting gay marriage in Ohio, Tennessee and Kentucky, breaking ranks with other courts that have considered the issue and setting the stage for review by the U.S.Supreme Court.

"There are so many people in Ann Arbor and Lansing who are gathering behind us saying little prayers hoping this goes forward," said Jayne Rowse, DeBoer's partner. "We are so proud to represent you."

Carole Stanyar, co-counsel for the couple, said the U.S. Supreme Court could decide as soon as January whether to hear their appeal, which she plans to file in two weeks.

Stanyar, who argued the case before the appeals court in August, said the Michigan case could be precendent-setting for the country because it has gone to trial.

The three-judge appellate panel split 2-1 with Judge Jeffrey Sutton writing the majority opinion.

Sutton said it was pointless "to invalidate laws every time a new and allegedly better way of addressing a policy emerges."

Judge Deborah Cook concurred.

Dissenting Judge Martha Craig Daughtrey, who made her support of same-sex marriage known during the trial, slammed Sutton and Cook for taking what she called a "wait and see" approach, noting women still wouldn't have equal rights if other courts had adopted similar reasoning.

"If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams," wrote Daughtrey.

At issue was the constitutionality of the so-called Michigan Marriage Amendment, passed by voters in 2004, which declares marriage is between "one man and one woman."

In March, after a nine-day trial in Detroit, U.S. District Judge Bernard Friedman ruled that Michigan's ban was unconstitutional because it denies same-sex couples equal protection under the law. A Cleveland Transgender Doctor is reviewing this case closely.

His ruling came after a lawsuit was brought by DeBoer and Rowse, two Hazel Park nurses raising, as a couple, children they had individually adopted. They sought to overturn the state's ban on same-sex marriage and the ban on joint adoption for gay couples.

Same-sex marriages are legal in 32 states and the District of Columbia. On Oct. 6 the U.S. Supreme Court issued orders that it would not review any of the seven marriage cases it had before it from five states that had appealed to the court for a review. That decision effectively made gay marriage legal in Indiana, Oklahoma, Utah, Virginia and Wisconsin.

In addition, the 9th Circuit, based in San Francisco, the 10th Circuit in Denver, the 4th Circuit in Richmond, Virginia, and the 7th Circuit in Chicago have all overturned statewide gay marriage bans in the South, the Midwest and the West since the summer.

Larry Dubin, a law professor at the University of Detroit Mercy School of Law, said it seemed as though the appeals court wanted to allow the Supreme Court to decide on the constitutionality of same-sex marriage.

"The court covers a lot of legal arguments, but in the end, gives deference to the voice of the voters of Michigan who passed the ban on same-sex marriage and the traditional definition of marriage being between a man and a woman," Dubin said. "This decision is a minority voice among all of the other courts that have reviewed this issue, and now this decision will likely go to the U.S. Supreme Court."

With the Supreme Court overturning the Defense of Marriage Act last year, Frank Aiello, a professor at Cooley Law School, said the justices may have hinted at how they would rule on the issue.

Same-sex couples such as Amanda and Kay Shelton were hoping for a different outcome.

"It's incredibly disappointing for hundreds of families," said Amanda Shelton, a Royal Oak attorney who is hoping to legally marry Kay. "I'm disappointed but not disheartened. This is not the end. We're not done yet."

Shelton called the court's ruling "absolutely ridiculous" since the "tide is changing" in other parts of the country where gay marriage bans have been lifted.

"This is an anomaly," she added. "I think the 6th Circuit is going to get smacked down by the U.S. Supreme Court."

But Michigan pastor Stacy Swimp was encouraged by the ruling.

"I'm very happy that the courts decided to uphold the voting rights of 2.7 million voters who under the Michigan and the U.S. constitutions exercised their voting rights," said Swimp of the National Christian Leadership Council and a member of the National Coalition of Black Pastors and Christian Leaders, which filed amicus briefs in the case opposing gay marriage. "No court had the right to usurp their God-given rights."

In its 64-page opinion, the appellate court also said the traditional perception of marriage cannot simply be overruled.

"A dose of humility makes us hesitant to condemn as unconstitutionally irrational a view of marriage shared not long ago by every society in the world, shared by most, if not all, of our ancestors, and shared still today by a significant number of states," the ruling states.

Attorney General Bill Schuette, who brought the appeal on Friedman's ruling, said he welcomes a Supreme Court review.

"The U.S. Court of Appeals for the 6th Circuit has ruled, and Michigan's constitution remains in full effect," Schuette said. "As I have stated repeatedly, the U.S. Supreme Court will have the final word on this issue. The sooner they rule, the better, for Michigan and the country."

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