Tuesday, March 25, 2014

Michigan's Ban On Same Sex Marriage Overtuned

Controversy: A Ban on Same Sex Marriage in Michigan

Decision: Judge Bernard A. Friedman Ruling Overturns the Violation of Equal Protection

Warning:  Should the Appellate Court Agree to Review the State’s Case, It Will Perpetuate an American Travesty of the Denial for Equal Rights and Reeks of Foul Play

Detroit March 24, 2014  

        In 2004, Michigan voters approved a ban on same-sex marriage by a 59% - 41% margin. One-year prior, Our Canadian neighbors rather matter-of-factly were discussing same-sex marriage not as a derisive issue or catastrophe or the Apocalypse.  The eventual acceptance of equal protection and a right to marry among gay couples (at last glimpse) did not topple Ottawa. It became part of the fabric of a civilized society and the inevitable evolution of progressive thought.
An Ontario Court struck down the law defining traditional marriage as unconstitutional on June 10, 2003.  Two years later the Canadians passed the Civil Marriage Act legalizing same sex marriage nationwide. That was 2005.  Here we have two democratic societies sharing a common border dealing with a sensitive social and moral issue (to some) with somewhat different results. More importantly, Canadian Society processed (pro-cessed) the right of same sex marriage exponentially and in short time the law assimilated among the people.
Here in Michigan, a short 1 ¼ mile tunnel excursion south from Detroit to Windsor, the passage of the statewide referendum banning same sex marriage waned and disappeared from the headlines. That is not until January 2012 when April DeBoer and Jayne Rowse, a lesbian couple filed their lawsuit in federal court seeking to strike down the 2004 amendment.

The couple’s motivation to file suit is that under other Michigan statutes their rights not only as a couple but also as biological parents were in jeopardy. The ban not only violated their constitutional rights and equal treatment under the law that protected every other heterosexual couples (even those deemed lacking parental skills).They came to learn under this law, if as a surviving adult  their basic legal and Moral rights as parents became the fodder for the inevitable future war. The ensuing battle's end would sever the ties among a loving family. The sacrifices made over nine years of love, care, education and hopes and dreams for their children may forever disappear. Why? The Law will not recognize, grant or find support among the small majority of “Christians” as marriage as moral and the Lord's will. The evangelicals base discrimination of equal treatment due to their religious beliefs. They fail to see or use their ignorance as a shield to embrace the Love they espouse. Who are these people who profess love of Christ, their obedience to a higher purpose and a literal interpretation of the Bible? They are children of God who lack the wisdom of his teachings.



This denial to act as primary custodians for their “family” is lacking in human decency.  It is not “Common Sense.”  Separations of this magnitude would indeed cause greater harm and trauma to the children it purports to protect. Under this law, “any person(s), a distant relative, a teacher who may display concern” would have as equal if not more chance than the surviving “mother” of these children...

“They who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” –Benjamin Franklin

Imagine if a distant relative or a member of one immediate family for that matter could petition the court for legal and physical custody of children raised nine years within the same loving family. Worse, a hidden agenda may exist where a relative, grandparent, sibling…may seek custody for vengeance against the adoptive mother with far greater connection, love and caring than anyone else. Imagine too, the trauma if the court awarded custody to a grandparent (who has legal preference simply by genetics) took the children to a distant state where for all intent and purpose, the familial connection, love between children, their second mother, their friends, school would be severed permanently. What if a similar scenario and tragedy were to fall upon a heterosexual couple? A similar trauma and damage to the family stability would occur.

Far worse consider that while a legal battle for custody of the deceased partner’s children dragged through the courts, The Department of Human Services under Children’s Protective Services would likely step in to stem the chaos as it intensified over time. The resultant action by DHS CPS workers would be the forced removal of the children from their happy home only to be placed in the State of Michigan’s admittedly abhorrent Foster Care Program. One huge injustice upon another would be heaped on a loving “parent” whose children may not understand what was happening only concluding that as children it is “their fault.”

As Judge Friedman, eloquently and adroitly points out in his written decision there are five (5) main legal issues that required the Court to address. As plaintiffs, the couple brought forth expert witnesses from about every professional field as they relate to children and the family environment they are exposed.
With every single plaintiff “expert” their testimony side railed the goal of a “Summary Suspension” of the matter in order to put in place a ”wait and see” study, yet another Republican-stacked do-nothing Committee to sweep the lawsuit under the rug. The strategy backfired as Judge Friedman cannot be labeled a novice in these underhanded tactics. The argument that “one man cannot usurp the will of the People is unfair” to the 51%. (Where has that percentage been deployed before I wonder.) The State’s case rested. A plethora of facts, expertise and the law is now in hand of Judge Friedman. How could he not rule in favor of a violation of this courageous lesbian couple and equal protection of the Law for the LGBT minority? God, Equality, Morality, and the U.S. Constitution will soon to be hear.

On the other hand, the State as Defendants brought their own sociological and other experts to testify in rebuttal to those of the Plaintiffs. Judge Friedman found their testimony to be shallow in empirical research and overall credibility. The “facts” as presented were at times contradictory, unprofessional and unbelievable. What is more frightening is that one of the renowned sociologists who conducted research and surveys among a small sampling of same sex partners with children admitted he was motivated by “a third party who paid for the study and subsequent court appearance because “this matter required it be defeated at all costs, right now.” The “hidden third party bank rolled the funding and payments to “expert research” may now be in a “witness protection program.” Intuition leans heavily that the third party is Republican in nature.

My question is if this party or group is so vehement that the ban not be overturned why keeping their identity secret.  However, this is just how skewed, prejudicial and hateful some opponents hold so dear to their archaic views. In my mind, it is an abomination and a threat to our judicial system.

The State of Michigan found their defense losing the case. The defense introduced a one almost “ludicrous arguments” that became self-defeating and in my mind sealed defeat. The argument exemplified a deliberate strategy to win the “hearts and minds” of an unqualified majority of Michigan voters. The State’s Attorney presenting the case either bought in to a Republican strategy well aware it could not escape Judge Friedman, Constitutional interpretation and a clear vision of precedent.

The State’s failure is quite evident in the reactions of some politicians and the public. What The opponents purport is their (rather rhetorical) question indicative of a vote population suffering from a basic understanding of American History and our U.S. Constitution. It is frightening to me that 51% of the voters (and no doubt non-voters) lack a fundamental understanding our History and they could be a dangerous threat to our democratic Government.

Following release of Judge Friedman’s ruling in overturning the “ban on same sex marriage” the Governors spokesperson issued his press release.  

 “We respect the court’s ruling, and we clearly recognize there are going to be appeals filed. This case wasn’t about LGBT issues, but about the governor’s obligation to defend the law and the (state) constitution as people wrote or amended it.”
The State also argues that it has a “legitimate” interest in preserving the traditional family structure because — it claims — children thrive best when raised by married moms and dads. The State’s weak argument in how “children thrive” self-imploded as discussed.
Perhaps, the State saved what they believed to be an ace in the hole. State attorneys (who reportedly attended Law School) argued, “The will of the voters should not be drowned out by a single judge”.
I repeatedly heard the same refrain since the ruling. Local Channel WDIV broadcast one Detroit minister’s disdain for the outcome, “How can one man make a decision that millions of Michigan voters approved?”
This argument lacks true precedence and reflects the voter, public and the State understanding of our Judicial Branch without which we as a democracy would have never survived.  Attorney General Bill Schuette said that the ruling goes against Michigan’s constitution, Schuette filed the request with the U.S. 6th Circuit Court of Appeals in Cincinnati at 5:17 on Friday, March 21.
Judge Friedman has cited the written opinions of the U.S. Supreme Court by Justices Kennedy and Johnson.

The very purpose of a Bill of Rights was to withdraw certain subjects from the
vicissitudes of political controversy…One’s right to life, liberty, and property,
to free speech, a free press, freedom of worship and assembly, and other fundamental
rights may not be submitted to a vote; they depend on the outcome of no elections.

Supreme Court has clearly stated that if . . . an enactment violates the U.S.
Constitution - whether passed by the people or their representatives - judicial
review is necessary to preserve the rule of law . . . [t]he electorate cannot order a
- isolation of the Due Process or Equal Protection Clauses by referendum or
otherwise, just as the state may not avoid their application by deferring to the
wishes or objections of its citizens.

Judge Friedman has written opinion one of the most telling and heartfelt statements he wrote. “In attempting to define this case as a ‘challenge to the will of the people, state defendants lost sight of what this case is truly about: people.”


Return to My Digression to Canada

I do not know if sociologists have deemed our Canadian neighbors as being an advanced society when they embraced this act as the third nation in the world to legalize gay marriage. What I do recall is approximately that year of 2005 I viewed a national CBC News program where various journalists and other pundits from Vancouver to Montreal held a televised forum regarding same sex marriage. One of the last comments made was in reference as to whether the United States would ever accept gay marriage and pass legislation to that end. One of the commentators indicated that eventually the U.S. would indeed find a propelling need to do the same. I remember the panel smiling and laughing as they signed off with some quip that Americans may be slow to do so, but eventually, perhaps within ten years same sex marriage would not be a whisper of an issue here.
I believe this one CBC television discussion remained with me all these years is that I felt a slight indignation. At the time, this was a hot issue in the U.S. I found the opinion of a ten-year lag time for Americans to “catch-up” somewhat of an insult to our country’s intellect and progressive vision. After all, we had put a man on the moon while Canada continued to put hockey players in the penalty box. Interesting that within their national sport, punitions was hand out for “interference and holding” preventing progress and a right of way.
Some years later, I came across a quote by Great Britain Prime Minister Winston Churchill. During the worst of WWII and the almost ceaseless Nazi air campaign, Churchill came to see the United States as the only ally that could save England and he found himself besieged by questions as to when the American People would come to their aid.


I found both humor and a dry wit in this mot as it prodded Americans to “do the right thing.” It bordered on resigned indignation with a caveat looming that he just may offend pacifists here across the pond. I pondered his methodology and found many of my own statements dealing similar controversy. It is not meant to slander, but to motivate people to look beyond personal prejudice for what is both right and moral.


You may read the entire written decision of Judge Benjamin A. Friedman where in detail he examines all of the arguments and the five major issues of law he rules at the following link.