Michigan Trial Ends–Decision to Follow

You all know I’ve been following that trial in Michigan where a lesbian family brought a challenge to MI’s restriction on who can adopt.   The trial itself ended yesterday and now the matter rests with the judge.  An opinion is expected in a couple of weeks.

To recap briefly, MI only permits married couples to adopt jointly–which gives the adopted child two legal parents.   The plaintiffs in Michigan are two women (April DeBoer and Jayne Rowse) who are a longtime lesbian couple.   One woman has adopted two special needs children from foster care, the other has adopted one special needs child from foster care.    Each of the three children has one legal mother (and one non-legal mother–by which I mean a social/psychological mother who has no legal status.)

DeBoer and Rowse originally challenged the adoption restriction but the judge suggested broadening the challenge to include MI’s restriction on who can marry.  That is because if DeBoer and Rowse could marry, then they could coadopt, which means you could look at the restriction on marriage as the underlying problem.  (But notice that this view isn’t necessary.   You could assert that there is a right to coadopt whether or not you are married.)

Now there are many cases around the country where restrictions on marriage are at issue.   In the last months, judges in UT, OK, VA, KY, and TX have found that laws restricting same-sex couples’ access to marriage are unconstitutional.  Appeals will soon be heard in the 9th, 10th, 4th and 5th Circuits.   And it’s hard to believe that the question won’t be back before the US Supreme Court this time next year.   The Michigan case is behind all these cases, in terms of how far along the proceedings are.

But what makes the Michigan case interesting isn’t it’s position in the great race to the Supreme Court. It is that the judge in this case decided to hear  live testimony from the social science experts.  (Their evidence would generally be submitted on paper only.)  And this meant that there as examination, cross-examination and press coverage.   That’s what I’ve been checking in on from time to time.  (You can read the earlier posts for more about this.)

But now, as I said, the case is closed and there’s nothing to do but wait to see what the judge has to say.  Yesterday the court heard argument from the attorneys for both sides.    (There’s also a nice summary article of the proceedings here.)

I still do not see how the defense (that’s the state of MI) connects up its dots, assuming it has dots.   How exactly does preventing a lesbian couple from getting married advance the state’s interest in having kids raised by married heterosexual parents?    It doesn’t sound like the judge asked (a lot of?) questions in closing argument, but I’d sure like to know what the state’s position on this one is.

There’s one other point I’d make as we turn to other things while we wait for the opinion:  This case is a nice illustration of how law gets made when it gets made by courts.  (Law can be made by judges or by legislators, and the processes are rather different.)  here the ability to coadopt and/or to marry.

So here you have two women who are raising children and apparently doing an admirable job of it.   They want to better secure the rights of their children to continue in this family even if, say, one of the women dies.   That’s very concrete and very specific.   It’s hard to see anyone arguing that it isn’t better for these particular children if the women coadopt.   Many would say it would be better for the children if these two women could and did marry.

It’s also hard to see how letting these two women marry is going to be detrimental to anyone else.  Is there a heterosexual in MI somewhere who will not marry/have children if these women are allowed to marry?   Or is there a heterosexual couple raising kids that would split up?   These are hard arguments for the state to make.

Instead, the state pretty much has to oppose the specific request of these women with a general argument about marriage and children–that children of same-sex couples generally do not do as well as those of different sex couples.    (And the state may have to concede that the general rule has exceptions–like these kids/this couple.)

By bringing the case in court (as opposed to seeking action through the legislature) this single couple is able to personalize the issue.   Why can’t we get married?  Why can’t we coadopt?

I make no claim that one route to change is better than another.  All I want to say is that they are different.

45 responses to “Michigan Trial Ends–Decision to Follow

  1. Julie, as an advocate of abolishing the marital presumption, and indeed a second parent altogether, (counting from one), you should hardly be making a claim that heterosexual marriage will not suffer if same sex marriage is accepted. Seems rather specious to me.

    • How does heterosexual marriage suffer if same sex marriage is allowed? A same sex couple whose relationship is recognized as a marriage it has zero impact on my life or my marriage to my wife.

      • I’m with you on this one Greg.

      • It means the heterosexual marriage doesn’t convey the same social approval of offspring that it used to. It means everyone loses the right to have offspring, because it gets equated to a same-sex couple’s right to have offspring, which is none, zero, wrong and unethical. People only have a right to reproduce with someone of the other sex. People have a right to be the sex they were born as, and they don’t have a right to be the sex they weren’t born as.

        • I don’t agree with you that the point of marriage is to produce off spring because again married couples will not always be able to reproduce (beyond just infertility) and some couples won’t have the desire to reproduce. If two people love each other are committed to one another and are happy I have no issue with them wanting to marry one another because it does nothing for me if they aren’t allowed to marry.

          • It doesn’t bother me an an individual level, at least not immediately, its about the inevitable legal and structural changes to the institution that flow from it, many discussed on this blog.

            • What legal and structure changes to marriage as an institute would change heterosexual couples who are married?

              • They would have their right to conceive offspring equated to a same-sex couple’s. Same-sex couples don’t have a right to conceive offspring. You do the math.

                • not quite, john. Everyone has the right to conceive offspring. No law blocks same sex couples from conceiving with each other. thats mother nature.

                  • People only have a right to do it as the sex they were born as, with someone of the other sex. Same-sex couples therefore don’t have the same rights, and the right they are missing is the essential right of marriage. There is no right to use genetic engineering or stem cells to conceive offspring as the other sex or with someone of the same sex, and it should be prohibited because it would be expensive and resource intensive and dangerous. And there is no right to use donor gametes or surrogates, either, and that also should be prohibited, but that isn’t related to marriage and so even if it isn’t prohibited and even if unmarried conception isn’t prohibited, it remains true that the only official legal and moral right to create people is marriage, using the marriage’s own gametes. Saying that unmarried or same-sex couples have the same right as a married couple takes that away from marriage. It means they too could be forced to use donor gametes. It also means they don’t enjoy the feeling of having the right and social approval.

                  • Gay people conceive with members of the opposite sex. They don’t have kids with their partners they raise them with their partners and I am so sick of hearing it misrepresented in the press like they conceived a kid together or that they are parents of a kid together its just total propaganda – fine raise the kid together don’t try saying you reproduced together not true.

                  • “Gay people conceive with members of the opposite sex.”

                    Currently yes, but I am referring to something called Postgenderism. From wikipedia:

                    “Postgenderism is a diverse social, political and cultural movement whose adherents affirm the voluntary elimination of gender in the human species through the application of advanced biotechnology and assistive reproductive technologies.[1]
                    Advocates of postgenderism argue that the presence of gender roles, social stratification, and cogno-physical disparities and differences are generally to the detriment of individuals and society. Given the radical potential for advanced assistive reproductive options, postgenderists believe that sex for reproductive purposes will either become obsolete, or that all post-gendered humans will have the ability, if they so choose, to both carry a pregnancy to term and ‘father’ a child, which, postgenderists believe, would have the effect of eliminating the need for definite genders in such a society.[1]”

                    I think we should rule that out and preserve natural sexual reproduction and accept that people are either men or women and only have a right to reproduce with someone of the other sex.

                • Individuals have a right to decide whether to reproduce or not though. Consenting adults have a legal right to participate in acts that cause sexual reproduction including those that require medical consent and the assistance of a physician. There is no requirement that people be married prior to having reproductive sex and is no requirement that they marry after they have reproductive sex and their offspring have no legal expectation that their biological parents either be married nor is there a need for them to get married since both bio parents are equally obligated to their care anyway.

                  Is it better that they be in love and be married? Sure. But it is not a requirement and therefore not the child’s right – the child does not have a right to control the behavior of the parent just a right to expect them to care for them.

                  • Eisenstadt didn’t say that single people had a right to reproduce without marrying first. It wasn’t reported that way at the time, it was only about access to contraception so as to NOT reproduce if they broke the law and had sex. It said they had a right to make a decision about whether or not to bear or beget children. If they decide to reproduce, they have to marry in order to have the right to. Or they can go ahead and do it without the official right, since we now pretty much (to an extent) treat them as though they married and divorced immediately, without any exchange of property or alimony unless a child is born. That recent change of getting child support from unmarried fathers with paternity tests and federal wage garnishing is what made it possible to says people had a right to unmarried sex. But that isn’t the same as an affirmative positive right, which marriage uniquely is. When a couple marries, they receive social approval and the official state civil right to have sex and procreate that unmarried people don’t get, even if they live together and go to their girlfriend’s parent’s house for Thanksgiving. It is really offensive to withhold that respect to a married couple by saying unmarried couples have the same right, and saying that the milkman or the babysitter have an equal right to have sex with them or their spouse.

              • The effect will affect adults and children, as all aspects of family law do, not just married couples.
                In order to equalize same sex couples and opposite couples, a sweeping overdo needs to be made in parentage law, most often leading to parentage by contract/ intent- or in the case of some extremists, our esteemed professor among them, eliminating biological fatherhood altogether. you may think this is cool or you may not, but our disaagreement then isn’t about an equality issue.
                (As a corollary to this, you may see a push for increased access for ART, which in real life means ability to exploit other people’s reproductive capacity, specifically women, most disturbing to me in the case of surrogacy)
                On the other side you have the folks proclaiming that marriage isn’t really about procreation at all and that its primarily an economic arrangement, much like any other business partnership. In the long run this takes the meaning out of marriage altogether and runs the risk that over the long term, legal marriage could be abolished altogether, and be relegated to the private sphere of churches and family. or at least have all the financial benefits sucked out of it, depending on what the state believes is more economically beneficial to them, so as to make it meaningless even from a financial perspective. again, you can argue whether this is a likely outcome or not, or you can argue about the definition but our disagreement once more is not an equality issues.
                The first is happening now, the second would likely not occur for a few decades.
                There are many discussion on this blog that point to either of these directions in my opinion.

                • This is absolute non sense that IMO comes across as homophobic and elitist. It’s as if those who are hetereosexual who have children are elite and above everyone else and that by allowing gay marriage it cheapens their marriage. A gay couple marrying does nothing either way to my marriage.

                  Marriage is about commitment between two people. Sure there is an economic benefit to it but those who do it strictly for that or children are not going to have long term marriages.

          • What about the social approval of offspring? What about having a right to conceive offspring with each other, using the couple’s own genes? Same-sex couples do not have that right, and should not receive any social approval of creating babies, offspring or otherwise. Just because you think you can’t have offspring, you want to vindictively bitterly deny that anyone has a right to? Not nice! Instead, you should be appreciative of having the legal right to conceive offspring with your wife, and for the social approval that comes with all sorts of benefits and protections of your relationship, even though you don’t have children. You get the benefits anyway, because not everyone is able to have children and children are not a requirement to having a full equal socially valuable marriage.

            • john, i hope you aren’t advocating that society should disapprove of folks based on their parents actions in conceiving them. i’ve often accused you that child welfare is actually the last thing on your mind.

              • No, but society shouldn’t support and approve of siblings or same sex couples or unmarried people creating people. The approval is withheld from those types of couples, not from the children. You are making a mistake that getting rid of illegitimacy was for the parents not the children. It was for the children, so they would have equal legal status to children born in wedlock. It didn’t mean that siblings and unmarried people suddenly were approved to create more children.

    • Two responses:

      First, I didn’t mean to say these were arguments I was offering. I think this is what the state has to prove–even assuming it has some special interest in heterosexual marriage (as opposed to all marriage.). Once you show differential treatment (this couple can marry and we cannot) you have to justify the exclusion.

      But second, I don’t understand why it would be specious. I could say (and I actually might say) that there shouldn’t be a marital presumption BUT if there is going to be one it needs to be equally available to all couples. And the same about marriage–maybe there shouldn’t be state sanctioned marriage, but if there is, it has to be equally available.

      I think I’m missing the point you are trying to make. Will heterosexual marriage suffer if same-sex couples are allowed to marry? (BTW, states that allow same sex marriages have been submitting briefs saying that they have found no ill effects on heterosexual marriage.)

      • I believe gay marriage could have been be structured so as not to threaten traditional heterosexual family building, but that was not the path taken by the SSM movement in general, but yourself in particular based on your statements both on this blog and elsewhere. In this very comment you state your belief in marriage being irrelevant, though that is not the policy you are advocating at this very moment as law.

        • I know I’m late in responding here, but I really do not see how gay marriage (however it is structured) could threaten traditional heterosexual family building.

          I can see the argument that allowing gay people to become parents (so you have two mother and two father families and so that you embrace the ART stuff) creates alternatives to traditional heterosexual family building. I don’t see it as “threatening”. And that’s not marriage–that’s parenting–which came first in this country.

          Finally–and I don’t mean to just be stubborn–I think it is consistent to say 1) the state shouldn’t recognize civil marriage and 2) if it does, it should do so for everyone.

          I guess I’m afraid I’m not understanding your point. Forgive me if I haven’t answered. (And if it’s a target gone by, I understand that too. You can just drop the thread if you like.)

          • i absolutely agree with you that if marriage has nothing to do with parenthood than the state shouldn’t be involved at all. That’s an anti-marriage ideology. You are admitting that you hold an anti marriage ideology although you are not currently advocating for it.
            For G, marriage is about a commitment between 2 people. A commitment to what? nothing that involves the state.
            The fact that many if not most gay marriage advocates are deep down anti legal marriage ideologues is indeed, not inconsistent.

      • Oh come on Julie what could the effect possibly be? Seriously though got to get rid of marital presumption. It was a leap of faith before now it’s just absurd. Nobody should get to lie Scott free.

        If all it took to convince the state was proof of marriage then there would be no presumption of anything at all. Your either married or you are not. What’s the presumption all about then hmmm? Not a presumption that they are married, got a certificate to prove that. Presumption is of biological fatherhood and that is why the husband is named father, not because they are married.

        Maybe you think they ought to do away with marital presumption, because it should just be no presumption, prove you are married and that’s it one two three boom your a father so long as your the spouse of the mother. No burdensome supposition about biological fatherhood, just married men turning into fathers every time their wife pops out a chidl. Screw the kid’s paternal familly unless the guy cares enough to marry the mother,

        • I’m only responding to the very first part: This is my point. What effect could allowing this lesbian couple to marry have on the heterosexuals in the community who are contemplating marriage. I don’t know–and I think the state has to articulate something to explain why denying the lesbian couple the right to marry serves to advance the interests of heterosexual marriage.

      • You are using the equal rights theme to frame the discussion which has proved incredibly successful, so I can’t blame you. It has come to the point where anyone who disagrees is labeled a bigot. not by you personally Julie, but that’s the general climate I have encountered.
        However, if you look at it through the frame of the definition and function of marriage, then I think the burden of proof is on the folks endeavoring to make the change.

        • This could be true as a social matter–but in court the question has to be framed in a particular way. The argument being raised is one about equal protection–which is to say, equal treatment.

          Plaintiffs say “your law treats us differently than this other couple. They are allowed to marry and we are not.”

          The state says “the differential treatment (denying you the right to marry) is justified because it serves a legitimate (or an important) state purpose.” Then the state has to say what purpose is served (here ensuring that children are raised in the optimal setting, I think)–and (critically) HOW it is served. How does denying that couple the right to marry help ensure that children are raised in the optimal setting?

          Or the state can say they are trying to promote heterosexual marriage. Even assuming this is proper state interest, how does denying the plaintiffs the right to marry promote heterosexual marriage? Do more heterosexual couples get marry because the lesbians cannot?

          I think the argument you might be thinking about is a slightly different one–one that allowing the lesbians to marry changes marriage as an institution. That’s actually not the line the MI case travelled and it’s a whole other discussion. The problem (legally) with that argument is that marriage has already changed quite a bit over the years. For a whole variety of reasons, having kids and getting married have become decoupled. People get married and don’t have kids. People have kids and don’t get married. And lesbian couples are raising kids. That makes this a harder argument to make these days. But then, maybe this wasn’t what you were thinking about.

      • You cannot have your cake and it it too here Julie. Men and Women are equally related as parents to their offspring. Based upon the way that men and women are equally situated they should have the same rights not different. Giving birth is a way in which they are not equally situated to their offspring and should therefore not be considered part of the criteria for determining whether or not he is a parent because it is not an arena in which he can compete nor need he because he is not vying for the role of female parent. The determining factor in his parenthood is proof of paternity wherein the determining factor in hers is maternity. If there is any competing for parental title between biology and and having given birth it would be between two females vying for the title of mother. We know who I’d find was the mother and we know who you’d find was the mother, but birth cannot be used by a woman to prove parenthood over a man because it’s not where they have equal standing in relation to the child. Proof of paternity is how we determine whether or not a man is the father of a child and the ability to prove it beyond a shadow of a doubt should be the determining factor in the decision. It’s absurd to pretend paternity exists where it is proven to not. If paternity is not going to be the determining factor in who is or is not the male parent of a child then it simply should be eliminated as a criteria altogether. If fatherhood is going to be the result of a popularity contest judged by the mother then rules of engagement need to be formalized and made part of the official play book so that people know what is expected of them and what to expect of others as well.

        • This is too big a question to discuss here–I just put up a post that might serve as a better home. Men and women are the same in many ways and also different in some significant ways. There’s probably a lot we agree about. But I won’t agree to say that giving birth is irrelevant because only women give birth. That, it seems to me, suggests we should ignore an important reality because it will make it easier to equate men and women. That’s too driven by the result (mean and women get equated) rather than the reality (women give birth and men don’t.)

    • uh how so?

  2. I would have advocated a marriage-like union which is like marriage in every way with the exception of anything related to reproduction. Since adoption is not reproduction it would have been cool under this union.

    • but there is nothing about reproduction when it comes to marriage in the california code. all that if the husband agrees stuf in ARTis covered in other codes, we could change those laws because they violate the child’s health and safety.

      • Oh come on, marriage means reproduction rights. If it’s not in the california code, it’s because it is the human code. There has never been a marriage that wasn’t allowed to have sex and reproduce. Can you imagine if Loving v Virginia was resolved by saying they are allowed to marry, but they may not have sex together? They have to use a black man’s sperm or a white woman’s eggs? That was and is ridiculous. It was understood that the issue was whether to let them reproduce or not. Even Lawrence v Texas affirmed that the essence of marriage is the right to have sexual intercourse, which is the same as the right to reproduce offspring together.

        Marriage has never allowed adultery. There was a presumption of paternity back in Henry the 8th’s day, but it was never considered an acceptable legal way for a wife to produce an heir. Don’t throw out marriage just because its presumption of paternity is being abused, throw out the acceptance of adultery and sperm and egg sales. Keep marriage as official legal social approval of the couple reproducing offspring together.

    • Right, you used to advocate exactly what I advocated, we were perhaps the only two people in the world advocating Civil Unions that were like marriage in every way but did not give the reproductive rights of marriage, it did not approve or protect or allow reproduction of offspring. I don’t know why you gave up that position, it still makes sense and now even the Pope is coming around to our position. I think it will be the final resolution, and it’s frustrating how much time and money is being wasted getting there, not to mention how unfair it is to kids who to have 3PR and Postgenderism presented as an inevitable future for them and then to finally prohibit it. If we are going to prohibit it, we should do it now. And we are going to prohibit it. Postgenderism will be too expensive and to damaging to equality and reproductive rights.

      • whats this about the pope? where did he say this?

        • Recently he was asked about civil unions, and seemed open to them, as long as they weren’t matrimony or marriage.

      • There is no such thing as reproductive rights. There is only reproduction ability and whether people have that ability and choose to use it or if they choose to not use it.

        • What about siblings? See? Deja vu, from a few weeks ago. People don’t have reproductive rights with just anyone. Only with people eligible to marry, and then only with their spouse. To tell a married couple that they don’t have a right to reproduce is very offensive and dangerous and an obvious legal falsehood.

          • john, you aren’t addressing the law as it is, only as you wish it would be. the law as it stands now accords everyone to reproduce without interference.

            • No, siblings go to jail if they reproduce under current law. Current law protects and affirms sex and reproduction. Yes, I think we need a new law against making people except by a man and a woman using their natural gametes, and, after that, I think we should prohibit intentional unmarried conception to stop sperm and egg trafficking. But the fact that those laws don’t exist yet is not addressing my argument. I know I’m trying to enact some new laws, I say it every day.

      • “Civil Unions that were like marriage in every way but did not give the reproductive rights of marriage. ” No my Mom was into that back in the 1980’s.

        You know John a faster route to the same result is to require each individual (married or not) to be accountable as a parent on the record and on the financial and physical hook for every single one of their own damned offspring. And holding people accountable for their own actions and their own offspring means that every person born is should be recorded as the offspring of an their mother and father of origin, no exceptions, married to one another or not, even if they are married to other people and would prefer to have raised their child with their spouse pretending that they had made that child together. Marriages don’t make babies, people make babies and marriages are not responsible for children individuals who create them are responsible for them.

        Two people of the same gender cannot have a child together. Any medical procedure that would cause one woman to fertilize another woman’s egg would result in the birth of a person who had been the subject of a medical experiment to which they were unable to consent. Parental consent to medical experiments on their minor offspring is a subject I think we should be gravely concerned about. I don’t have any ready answers to that and have not given it adequate thought to speak intelligently about it but I think society should be looking at the issue from a medical ethics standpoint and not by trying to regulate who is allowed to reproduce with whom.

        • I don’t know if it is faster or if it is the same result, but sure, we should certainly hold people responsible for their own offspring and record the actual progenitors on the birth certificates. You are underestimating how easy it will be to get people to accept the mandatory paternity and maternity testing of all babies born to verify parentage and make sure people don’t lie or make mistakes. How will you phase that law in, and will it be retroactive? I think it is a pretty radical severe law that sounds pretty crazy: mandatory DNA paternity testing of all babies. I think eventually, in like five or ten years, people will be more open to the idea because it will be done anyhow. But I think preserving the right of marriages to have sex and prohibiting cloning and genetic engineering and same-sex reproduction is easier to pass because it doesn’t change anything that people do, it isn’t a radical change (except that it voids all same-sex marriages, but that is what would help propel it in Congress).

          And, when we look at same-sex reproduction from a purely medical ethics standpoint, we can’t escape the fact that it’s unethical. People should not be allowed to reproduce with someone of the same sex, just as people should not be allowed to reproduce with siblings or parents or anyone they are not eligible to marry. It is a blanket categorical prohibition, not regulating “who is allowed to reproduce with whom” on an individual scale. The law is to preserve the right to marry and reproduce with who we want, and not be told we may not reproduce with someone because of our genes or fitness.

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