OCBA UPDATE: To love and to cherish...

By James G. Derian By the time you read this, the U.S. District Court should have commenced trial in DeBoer v. Snyder,1 which will decide whether due process and equal protection are violated by the Michigan Adoption Code and the state's 2004 constitutional amendment banning same-sex marriage (the "Michigan Marriage Amendment" or "MMA").2 Plaintiffs April DeBoer and Jayne Rowse are an unmarried same-sex couple who have lived together in a domestic partnership for the past six years. They have each separately adopted infant children and would now like to jointly adopt them, so the children can have the benefit of two legal parents. But, the Michigan Adoption Code prevents them from doing so because Section 24 of the code restricts adoption to either an individual single person or a married couple.3 Plaintiffs DeBoer and Rowse would like to marry, but the 2004 Michigan Marriage Amendment restricts the state's definition of marriage to heterosexual couples. The MMA also prohibits legal recognition of all civil unions or domestic partnerships. Initially, the trial court in DeBoer will determine the constitutionality of the MMA and Section 24 of the Michigan Adoption Code under the "rational basis test." If the MMA and Section 24 are found to be "rationally related to a legitimate government interest," the court will conduct a separate second trial to determine if it should review these state laws under the more rigorous "strict scrutiny" test, which is reserved for laws that either affect "fundamental rights" or discriminate against "suspect classes." The parties are factually at odds over whether the universally acknowledged "fundamental right" of marriage includes the right to marry a person of one's own gender. They also intend to offer conflicting evidence over whether homosexuals should be considered a "suspect class," thus requiring laws discriminating against them to withstand strict constitutional scrutiny. Addressing rational basis review, Michigan's attorney general contends there are at a minimum three basic government interests supporting an exclusively opposite-sex definition of marriage: 1) providing an optimal childrearing environment that includes both male and female role models for healthy psychological development, 2) promoting and fostering naturally procreative relationships into stable unions, and 3) proceeding cautiously in an information vacuum with redefinitions of traditional marriage, so as to avoid serious unintended societal consequences. The attorney general admits that same-sex couples are capable of providing a loving home for children. But he maintains that the traditional definition of marriage as a union of one man and one woman provides the "optimal family setting" for children and produces a better societal outcome because it "fosters natural procreation and promotes raising children in a home environment with both a mother and a father." The attorney general acknowledges that the Michigan Legislature is entitled to "experiment" with social policy to determine what is in the state's best interest in this regard. He insists, however, that the state "should not be constitutionally compelled to race down that path while so many questions about the impact of same-sex marriage remain unanswered." Regarding the Michigan Adoption Code, the attorney general points out that adoption is not a right; it's a statutory privilege. Further, because the welfare of the adoptee child is the state's overriding interest, the state can make classifications for adoption that would be otherwise constitutionally suspect, such as those based on age, religion, racial identity and citizenship. In any event, joint adoptions by unmarried couples in Michigan would run contrary to the historical purpose of adoption, which is to "imitate the natural family." Thus, Michigan's interest in refusing to recognize adoptions of children by unmarried couples is part of the state's recognition of the importance of the traditional family. This restriction also avoids the specter of multiple unmarried people seeking to collectively adopt one child, which would drift even further from the traditional family model. Finally, the attorney general points out that Section 24 does not discriminate on the basis of sexual orientation or gender, but rather marital status. So, plaintiffs' alleged harm is not attributable to the state's enforcement of Section 24. Plaintiffs DeBoer and Rowse respond by initially pointing out that tradition alone cannot form a rational basis for a law. They also take issue with the state's contention that limiting marriage to heterosexual couples encourages "responsible procreation and child-rearing." They contend that permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit or have children outside of marriage; nor will it otherwise adversely affect the stability of opposite-sex marriages. Plaintiffs note that marriage is more than a license to have procreative sex. Further, it would be an unconstitutional interference with the "fundamental right" of marriage for the state to make the ability to procreate a precondition to obtaining a marriage license. In any event, same-sex couples can and do have children by means of artificial insemination, surrogate parenting and adoption. Moreover, plaintiffs contend, same-sex marriage bans actually harm children, citing the recent U.S. Supreme Court decision in Windsor v. United States,4 which struck down the federal Defense of Marriage Act ("DOMA") for discriminating against a same-sex couple who had been legally married under New York state law. The Court in Windsor found that DOMA inflicted "significant and undeniable harm" upon same-sex couples and their children by depriving them of a host of federal marital benefits and protections. The Windsor Court struck down DOMA because it found that states have sovereign authority over the definition of marriage. But the Court in Windsor avoided deciding whether there is a rational basis for distinguishing between traditional and same-sex marriage, saving the issue for another day. Nevertheless, plaintiffs argue that the decision in Windsor, together with the U.S. Supreme Court's prior rulings in Romer v. Evans5 and Lawrence v. Texas6, indicate there is no longer a principled, rational basis for limiting marriage exclusively to heterosexual couples. Plaintiffs intend to prove that a "strong consensus" has emerged among the medical, psychological and social welfare communities that children raised by gay and lesbian parents are just as likely to be well-adjusted as those raised by heterosexual parents. They point out that in "no-fault" divorce states such as Michigan a married opposite-sex couple can easily divorce. So while the children born during the marriage would still have two legal parents, Michigan law allows opposite-sex couples to easily undermine the state's vision of a home environment with both a mother and a father. The state's argument, plaintiffs say, also ignores the fact that single gay people can adopt a child under Michigan law. Plaintiffs' principal argument against the constitutionality of Section 24 of the Michigan Adoption Code is that it irrationally distinguishes between single persons and unmarried couples. Here, they point out that single people, whether homosexual or heterosexual, are permitted to adopt under Section 24. Furthermore, plaintiffs contend, Section 24 of the Adoption Code cannot serve the state's interest of replicating, through adoption, the "traditional family," because by permitting single persons to adopt it also defines a family to include a single parent and his or her child. These adoptive single parents, like plaintiffs DeBoer and Rowse, may be living with a same-sex domestic partner. Finally, plaintiffs argue, any concern the state might have regarding the fitness of a same-sex couple to adopt can be adequately addressed by Michigan's existing legal framework for adoption. This process mandates an individualized assessment of the petitioner's qualifications to become a parent before adoption may be approved. Both DeBoer and Rowse have already gone through this process and were approved by Michigan's Department of Human Services to individually adopt their respective children. Accordingly, they contend that Michigan's Adoption Code irrationally distinguishes between single persons and unmarried couples, thus depriving them of due process and equal protection under the Fourteenth Amendment of the U.S. Constitution. But, I'd like to know what you think. Your views matter to me. Email me at james.derian@delphi.com. ---------------- Footnotes: 1. Deboer et al. v. Snyder et al., No. 12-cv-10285 (E.D. Mich. filed Jan. 23, 2012). 2. Mich. Const. Art. I, Sec. 25. 3. MCL 710.24. 4. 133 S.Ct. 2675 (2013). 5. Romer v. Evans, 517 U.S. 620 (1996) (striking down on equal protection grounds the Colorado constitutional provision prohibiting the inclusion of sexual orientation in state and local anti-discrimination laws). 6. Lawrence v. Texas, 539 U.S. 558 (2003) (striking down on due process grounds a Texas statute prohibiting consensual sex by adult same-sex couples). ------------ James G. Derian, corporate counsel for Delphi Automotive Systems LLC, is the 81st president of the Oakland County Bar Association. Published: Tue, Mar 18, 2014

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