Michigan Lesbian Couple Gets Their Day In Court

Prompted by a same-sex adoption challenge made by a Detroit lesbian couple, a federal judge agreed yesterday to hear arguments on the legality of Michigan's ban on gay marriage and adoption by the state's same-sex couples, on October 1. The case has the potential to be groundbreaking.

"Plaintiffs' equal protection claim has sufficient merit to proceed," said Judge Bernard Friedman, citing the SCOTUS decision on DOMA as proof of the case's merit. "The United States Supreme Court's recent decision in United States v. Windsor, No. 12-307 (U.S. Jun. 26, 2013), has provided the requisite precedential fodder for both parties to this litigation. Plaintiffs are prepared to claim Windsor as their own."

Back in March, a federal judge told lesbian couple Jayne Rowse and April DeBoer that their lawsuit to joint adopt their three children, which challenges the states' voter-approved same-sex marriage ban, would have to wait until the Supreme Court ruled on the Defense of Marriage Act. But when SCOTUS ruled on DOMA and Prop 8 last month, the judge rejected the state's request to dismiss the lawsuit and said, "the plaintiffs are entitled to their day in court and they shall have it."

On July 10, the couple learned that their quest to adopt their children would be moving forward. On October 1, the judge will hear arguments on the couple's belief that the U.S. Constitution's equal protection clause should invalidate a ban on same-sex marriage that voters approved in 2004 and that prevents them from being recognized as a couple during adoption proceedings.

Rowse and DeBoer, who are both nurses, live together with three adopted children they have raised since birth, two of whom DeBoer has adopted, and the third whom Rowse has adopted. The Hazel Park couple has lived together for more than six years with Nolan, 4, Jacob, 3 and a girl, Ryanne, 3, children who couldn't be raised by their birth parents.

Michigan law prevents the women from jointly adopting each other's kids, but the couple wants the security that joint adoption will bring.

"It would mean being able to raise our kids knowing that nobody can ever interfere; nobody could ever take our children away from each other if something happened to one of us...because, at this point in time, if something did happen our kids could be separated," DeBoer said in a WWJ interview.

Rowse added that even if one of the women died and the instructions for their care were spelled out in a will, the other woman might not be recognized as the legal guardian of the children.
"It could be contested, just like anything in a will. If one of my family members said, 'I want the kids,' a judge could say, 'This is family. She's not,'" said Rowse. "They could be separated. That's not fair to them. They're brothers and sister."

Although the two did not set out to subvert Michigan's gay marriage ban, at Friedman's suggestion, they expanded their challenge. It will now test the legality of a 2004 constitutional amendment that stipulates Michigan only recognizes marriages between a man and a woman.

If Friedman concludes the amendment violates the U.S. Constitution, gay-marriage supporters say same-sex couples would immediately be allowed to wed and adopt children. Twelve states and the nation's capital now permit same-sex marriage, and at least 16 states and the District of Columbia allow same-sex couples to jointly adopt children, according to Human Rights Campaign.

"This is not the road we thought we'd go down," Rowse, 48, said in an interview. "We thought Judge Friedman would rule one way or the other on second-parent adoption. No one anticipated this. It was out of left field."

DeBoer, 42, added, "I know we're taking on a bigger issue with same-sex marriage."
One of the couple's attorneys, Kenneth Mogill, said he was pleased by the judge's order.

"This was clearly the correct decision, and we look forward to taking the next steps to establish April and Jayne's right to marry and adopt each other's children," he said.