February 28, 2014 at 2:14 pm

Trial challenging Michigan's adoption law evaluates institution of marriage

April DeBoer, from left, and Jayne Rowse with DeBoer's attorney, Dana Nessel, at the Theodore Levin U.S. Courthouse for the case of DeBoer v. Snyder on Tuesday. (Daniel Mears / The Detroit News)

Detroit — The institution of marriage has evolved in America over the past century, and same-sex marriages are defining the new trends in marriage, a Harvard University history professor testified Friday during a federal trial on a lawsuit challenging Michigan’s bans on adoption by same sex couples and gay marriage.

“The trend is moving toward same-sex gender neutrality/gender equality marriages; and the trend is moving toward same-sex marriages,” Nancy Cott said. “The Michigan Marriage Amendment obstructs that trend from continuing.”

Cott, the author of “Public Vows: A History of Marriage and the Nation,” is a professor of American history and faculty director for the Schlesinger Library on the History of Women in America. She testified for the plaintiffs, April DeBoer and Jayne Rowse, two nurses from Hazel Park with three adopted children between them, who wish to adopt them as a couple.

In explaining how marriage has evolved, Cott cited the 300-year ban on interracial marriage, which was overturned by the U.S. Supreme Court in the landmark case Loving v. Virginia in 1957.

Michigan was among the first states to outlaw anti-miscegenation laws in 1883, Cott testified.

Cott said marriage is a “civil contract” that only be legally sanctioned by legislatures and the courts. In addressing religious objections to same-sex marriage, she said religious authorities have no legal standing over marriages even though they are allowed to conduct marriage ceremonies.

Cott said there have been no laws in U.S. history that made procreation a requirement for marriage, an argument used by opponents of same-sex marriage.

“There are no laws to prevent someone who is sterile from marrying,” Cott testified. She added that George Washington, referred to as “the father of the country,” did not have biological children.

Cott later admitted the state of Michigan does have an interest in marriage between a man and a woman for population purposes and sometimes economic reasons but did not believe those two issues should stand in the way of same-sex couples legally marrying.

DeBoer and Rowse amended their lawsuit to include a challenge to the state’s ban on gay marriage. In 2004, Michigan voters approved a law banning gay marriage.

Under cross-examination by state attorney Michelle Brya, Cott agreed there are “likely” benefits to having children raised by both a mother and father. Byra did not elaborate on what those benefits would include.

Also on Friday, state attorney Joseph Potchen asked U.S. District Judge Bernard Friedman to dismiss the case, saying the lawyers had not met their burden of proof that there was no rational basis for the same-sex adoption or gay marriage bans. But co-counsel Ken Mogill disagreed, saying their expert witnesses, all scholars, had presented “overwhelming” evidence that there is “utterly” no basis for the Michigan Marriage Amendment, passed by voters in 2004, prohibiting same-sex marriage.

Friedman said he would take Potchen’s request under advisement but that the case was "too important" and the trial would continue.

Cott was the only witness Friday.

On Monday, Oakland County clerk Lisa Brown, named as a defendant in the case, is expected to testify before state attorneys who will present their case. Brown’s attorney, Michael Pitt, testified at the beginning of the trial that the clerk will issue marriage licenses if Friedman rules to lift the gay marriage ban in Michigan, saying she will respect the ruling of the judge in the case and not elected government officials.

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