Gay marriage case opens in High Court

By Robert Snell and Oralandar Brand-Williams
The Detroit News

Two Michigan nurses challenging the state's gay-marriage ban before the U.S. Supreme Court on Tuesday hold some of the most sympathetic and compelling arguments that will be presented in front of the nine justices, legal experts say.

How effective April DeBoer's and Jayne Rowse's legal team is in persuading the High Court to overturn Michigan's ban on same sex marriage has gay and lesbian couples nationwide watching for indications that, finally, they'll have the right to marry in all states.

People on both sides of the issue have been camping outside the Supreme Court building in Washington, hoping to get one of the extremely limited number of seats to hear the historic arguments.

Mark Gurley, Michigan director of the advocacy group Oak Initiative, unfurled a banner that read, "Homosexuality is a behavior, not a civil right."

Gurley said a billboard with the same message will be mounted at the Interstate 96 interchange with M-59 near Howell by Friday for a five-week display. Plans for more billboards elsewhere in Michigan are in the works, he said.

April DeBoer says she got tears in her eyes as she walked outside the U.S. Supreme Court on Sunday.

"It really started to get real," said DeBoer during an interview with her partner, Jayne Rowse, Monday with The Detroit News. "Four years of hard work ... four years of fighting has come to this. Once we walk into that courtroom our lives could change forever ... for (the) positive."

With Michigan's case at the forefront of the four that will be argued Tuesday, supporters of gay marriage turned out in Lansing on the eve of the High Court showdown. About 100 held a rally and candlelight vigil in front of the statehouse Monday evening.

"Let's celebrate tomorrow, when we have our historic day in court," said Bill Greene, interim executive director of Equality Michigan, an organization that advocates for LGBT rights.

The case by DeBoer and Rowse challenging the state's gay marriage ban was the only one that went to trial, distinguishing it from cases in Ohio, Kentucky and Tennessee, which also will be heard by the court Tuesday.

"There is a complete record of experts who gave opinions that are pertinent to the equal-protection issue that the court will be considering," said University of Detroit Mercy law professor Lawrence Dubin.

DeBoer and Rowse initially challenged Michigan's rules banning the women from adopting each other's special-needs children. They later amended the federal court lawsuit to challenge the state's gay marriage ban.

Attorney General Bill Schuette's office defended the voter-approved constitutional amendment defining marriage as between a man and a woman while other political leaders have disagreed.

"Michigan's discriminatory same-sex marriage ban is wrong, outdated and unconstitutional," U.S. Rep. Dan Kildee, D-Flint Township, said in a statement. "I stand with April and Jayne, and the countless other loving LGBT families like theirs across the nation, who deserve to have their family treated equally under the law."

Last year, U.S. District Judge Bernard Friedman ruled the state ban was unconstitutional. The U.S. 6th Circuit Court of Appeals later upheld the ban.

The Supreme Court and lower courts have focused previously on the role children play in families and the impact of marriage bans, said Martha Umphrey, an American government professor at Amherst College.

"The Michigan case is sympathetic from that perspective," Umphrey said. "The couple itself and their relationship to the children present a very sympathetic case for arguments against the ban. What will happen if one parent doesn't have legal rights?

"Whenever you have a situation in which you don't have a legally protected, two-parent family, children are more at risk if something (bad) happens. Here, you have kids who were special needs, the parents are two nurses and I think the implication is they know how to take care of people and are not irresponsible."

The couple is challenging the Michigan Marriage Amendment, an 11-year-old ban on gay marriage voters approved in 2004.

Supreme Court justices will decide two questions: Is a state obligated under the 14th Amendment to grant a marriage license between two people of the same sex? And is a state required to recognize a marriage between two people of the same sex when it was a marriage legally recognized and performed in another state?

At the heart of his arguments, to be made in 45 minutes, will be the question of who decides whether same-sex couples can be legally married in Michigan.

The record built during the two-week trial in front of Friedman could have a significant impact on Supreme Court opinion, expected this summer, said Carl Tobias, law professor at the University of Richmond.

"He heard from expert witnesses and built a record that other courts don't have," Tobias said. "It might become critically important and be more likely to be picked up by the justices in writing the opinion."

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Staff Writers Melissa Nann Burke and Chad Livengood contributed.