Michigan District Judge Declares State's Prohibition on Same-Sex Marriage Unconstitutional

Professor Ruthann Robson, City University of New York (CUNY) School of Law

Following the trend which we most recently discussed here and here, Senior United States District Judge for the Eastern District of Michigan, Bernard Friedman, declared the state's same-sex marriage ban unconstitutional in his  opinion today in DeBoer v. Snyder.

At issue was Michigan's state constitutional amendment, Mich. Const. Art. I, § 25, which the court referred to as the Michigan Marriage Amendment, MMA, passed by voter referendum in November 2004.  The judge held a trial limiting the issue to whether the MMA "passed rational basis review" under the Fourteenth Amendment and held that it did not because it violated the Equal Protection Clause.  The court stated it therefore did not reach the Due Process Clause question.

The state proffered the by now familiar government interests to satisfy the required "legitimate" government interest:

1.  providing an optimal environment for child rearing;
2. proceeding with caution before altering the traditional definition of marriage; and
3. upholding tradition and morality.

In evaluating each of these, the judge reached the by now familiar conclusions.  Judge Friedman discussed the evidence at trial, holding that there was "no logical connection between banning same- sex marriage and providing children with an 'optimal environment' or achieving 'optimal outcomes;'" that the "wait and see" approach did not satisfy the legitimate government interest standard; and finally that upholding tradition and morality likewise did not satisfy the legitimate government interest standard, citing several of the recent cases that have held likewise. 

Additionally, Judge Friedman rejected the state's "federalism" argument that sought to distinguish United States v. Windsor, relying heavily on Loving v. Virginia.  As the judge phrased it:

Taken together, both the Windsor and Loving decisions stand for the proposition that, without some overriding legitimate interest, the state cannot use its domestic relations authority to legislate families out of existence. Having failed to establish such an interest in the context of same-sex marriage, the MMA cannot stand.

The judge also rejected the argument that the MMA's status as a constitutional amendment prompted by voter referendum was relevant, quoting the famous language from the 1943 flag-salute First Amendment case of West Virginia Bd. of Ed. v. Barnette: the "very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy" and "to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts."

Judge Friedman's decision is closely and carefully reasoned, although it closes with a rhetorical paragraph that labels the opinion "a step in the right direction."

The Judge enjoined the enforcement of the same-sex marriage ban and unlike some other judges, he did not order a stay.

[image: Map of Michigan circa 1836 via]