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Federal Judge Encourages Lesbian Couple To Take On Michigan’s Same-Sex Marriage Ban

by Jean Ann Esselink on August 29, 2012

in Discrimination,families,Jean Ann Esselink,News

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A same-sex Michigan couple, Jayne Rowse and April DeBoer, and their three adopted children have become near and dear to my heart these last few months, as they wage a legal battle against the State of Michigan. If you read my Mother’s Day On Our Radar column, you will remember them. The women seek to adopt their three children as a couple, which would bestow on the children all the legal rights of a two-parent family. Current Michigan law allows only one of the women to adopt each child.

Today US District Court Judge Bernard Friedman, a Bush appointee who struck down affirmative action at the University of Michigan, (a decision overturned on appeal) entertained the State’s motion to dismiss their case. Assistant Michigan Attorney General Joseph Potchen argued the couple “was trying to do an end run around the state constitution” (which forbids same-sex marriage) and told Judge Friedman that the couple was “speculating” that being able to adopt as a couple would constitute a better situation for the children.

Arguing for the DeBoer-Rowse family, Robert Sedler, a constitutional law professor from Wayne State University pointed out that Michigan law has allowed each of the women to adopt children separately, and that not allowing the children the legal advantages of a two-parent family discriminates against the children of same-sex families. Sedler told Judge Friedman, “If one legal parent is good, two legal parents are better.” He urged the Court to carve out an exception for couples in their situation.

In a surprise ruling, Judge Friedman invited the women to challenge the constitutionality of the amendment to the Michigan State Constitution that prohibits them from adopting, which also happens to be the amendment that prohibits same-sex marriage. “I’m not looking for more work.” he told the lawyers. “I don’t want to push them into something they don’t want to do.” He gave Jayne and April ten days to decide whether they want to amend their petition to take on marriage equality in the state of Michigan. If they choose not to do so, he will rule on the State’s motion to dismiss.

The main stumbling blocks to Jayne and April challenging the Michigan marriage inequality amendment are resources. The women are both nurses, already burdened with the expenses of special needs children, and they are facing the deep pockets of the state. April told me they are “surprised at the turn of events” and that they “are leaving a lot of the decisions to our attorneys. We have very little backing here in the state of Michigan and it is now a group decision.”

Dana Nessel, a lawyer for the couple told the New Civil Rights Movement prior to today’s hearing how difficult it has been to secure the help of any LGBT organizations.

 << We also were turned down by every one of the state’s LGBT organizations (including the ones that specifically deal with same-sex adoption) who have all indicated they don’t assist in “private lawsuits,” even ones that can potentially change the law for anyone similarly situated.  This is extremely problematic because a case like this will ultimately involve many expert witnesses from around the country, deposition fees, transcript fees, travel costs, etc., and, honestly, at this point we have no idea where this money will come from. We tried soliciting for assistance before ever filing the suit, but made no progress.  We decided to go ahead with the case anyway, since there were so many families in the state suffering as a result of this barbaric, outdated statutory scheme, hoping that after the case received some publicity people and organizations would want to get involved, but, at this point, we’ve had virtually no success.  It’s actually very disillusioning, as Michigan is one of only 5 state’s left in the country that offers not a single type of protection for gay and lesbian families like April and Jayne’s,  but no one is actually willing to do anything about it. >>

Perhaps Judge Friedman’s unexpected invitation will cause groups like Freedom to Marry to give the DeBoer-Rowse case another look. It isn’t often the facts of a case would cause a conservative judge to invite a challenge to a state’s constitution, especially to an amendment banning same-sex marriage. For the LGBT community to allow this opportunity to pass would be a shame.

April told me this evening she and Jayne “are discussing our next steps and that whatever decision we come to, we will continue to fight for the rights and protection of our children. We continue to believe this too is a children’s rights issue.”

The New Civil Rights Movement will keep you updated on the case. You can help April and Jayne through their adoption fund. 


tncrmJean Ann Esselink is straight friend to the gay community. Proud and loud Liberal. Closet writer of political fiction. Black sheep agnostic Democrat from a conservative Catholic family. living in Northern Oakland County Michigan with Puck the Wonder Beagle.

Follow Jeannie on Twitter as @Uncucumbered or friend her on Facebook.


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RCChicago August 30, 2012 at 11:52 am

Sent an email to Freedom to Marry, Hurman Rights Campaign and Lambda Legal with a link to this very important story. Asked them to look into this and consider helping. Maybe if more folks contact them…?

bsradar August 30, 2012 at 3:35 pm

The judge saw through to the real purpose of this lawsuit, and gave them ten days to state it openly.

SSM is illegal in Michigan.

This case isn't going to change that, which is probably why none of the SSM groups are taking the plunge here.

uncucumbered August 30, 2012 at 5:36 pm

What you are implying, that a sitting judge would entrap a plaintiff into a case he could deny it, is completely unethical – the stuff of judicial review and disbarment. You are projecting your own shaky character on an ethical jurist with no facts to support you but wishful thinking, You should apologize to Judge Friedman for the slander you just committed.

Coxhere June 3, 2013 at 9:24 am

Oh yes there IS a "fact." The judge is a Bush appointee and struck down affirmative action at The University of Michigan. Bsradar, you owe no one an apology for anything! And you, uncucumbered, are projecting your own shaky character onto a human being who implied nothing come nearing a slander on anyone. You should apologize to Bsradar for slander you just committed.

bsradar August 30, 2012 at 7:08 pm

There is not the slightest implication as you suggest.

The judge correctly and factually informed the plaintiff that the case they were trying to make involved a challenge to the marriage laws in Michigan.

He gave them ten days to make a decision as to whether they would like to incorporate that challenge into their case, before he rules.

Sounds like a judge bending over backwards to try and be as fair as possible before ruling on the merits.

You should apologize to me for bearing false witness.

Serenifly August 30, 2012 at 10:50 pm

Adoption should be decoupled from marriage, so it's not really the right way to go.

And there are states with successful lawsuits about joint adoption that don't have any form of gay relationship recognition. Most notably Arkansas and Florida. There is no reason why Michigan can't do the same.

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