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.