Wednesday, February 26, 2014

Why the trial in Michigan Federal Court really matters....and how to follow it closely

I wrote last fall about DeBoer v. Snyder, and the trial in the case is upon us.  This case began as a challenge to Michigan's refusal to grant second-parent adoptions, and it has, thanks to a federal court judge who all but insisted, turned into a challenge to Michigan's ban on same-sex marriage.  I criticized the conflation of adoption and marriage in my earlier posts and won't repeat them here.  But the trial began yesterday, and it is time to sit up and take notice.

I suspect many people will see the Michigan case as just one in a string of cases, especially with so many federal court judges striking down same-sex marriage bans.  (A Texas judge did so just today).  But there is a big difference.  The Michigan judge ordered a trial, a factfinding process after which he will rule.  The only other recent case that went to a full trial was the "Prop 8" Perry case in California.  But DeBoer is significantly different from Perry.  The defenders of Prop 8 offered no meaningful expert testimony in support of the ban on same-sex marriage. (They called to the stand David Blankenhorn, who tried and failed, under withering cross examination by David Boies.)

The state of Michigan is going a different route.  It is trying to get the court to rule that children do best when raised by their married, heterosexual, biological parents, and that therefore the state is justified in prohibiting second-parent adoption and same-sex marriage. So far, without holding trials, the recent court rulings against same-sex marriage bans have all found arguments like that in DeBoer unfounded. But DeBoer will involve witnesses and factfinding based on their testimony.

Michigan is calling Mark Regnerus, whose study supposedly showing that children raised by same-sex couples do worse than children of married heterosexuals, was the subject of immense professional criticism two years ago.  Regnerus counted those with a parent who had any same-sex sexual relationship, however fleeting, as raised by gay or lesbian parents, even though very few of the children lived with a parent and a parent's partner for any length of time.  None of those studied had been raised from birth by a same-sex couple.  Look for ACLU attorney Leslie Cooper to do a stunning cross-examination of Regnerus.  (For a preview, check out the criticism of Regnerus in this Lambda Legal brief in an earlier case). Adoption expert David Brodzinsky, a witness for the plaintiffs, has already critiqued the Regnerus study and offered his own opinion that denying parentage to both adoptive parents (as well as marriage) is bad for the children.  Because the children of the plaintiffs were all adopted from the state foster care system, his testimony is especially valuable in this case.

Anyone interested in following this trial has an amazing resource -- the live blogging of attorney Jane Bassett, who practices LGBT family law and elder law in Michigan.  She covered yesterday's full day of trial in 11 updates.  Today was a short day, and she provided 2 updates.  She'll be back at it tomorrow, when the plaintiffs offer LGBT demographer extraordinaire, Gary Gates, as their next witness.  Because Jane Bassett understands the law and the issues in this case so well, I trust her more than the newspaper sources covering the trial.

If the judge insists on striking down Michigan's marriage ban, I sure hope he separately strikes down the ban on second-parent adoption.  I know the plaintiffs are trying to get him to do that, and I commend the plaintiffs, who have always sought dual parentage, not marriage, as their main goal.  I'll be following Jane Bassett's blog every day until the trial ends.

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