I am a family law attorney also known as a divorce lawyer in the Lake Orion area of Oakland County, Michigan. My newsletter typically deals with issues facing divorcing families, such as custody, property division and alimony, however, with the recent United States Supreme Court decision in United States v Windsor, No 12-307 (U.S. June 26, 2013) regarding the Defense of Marriage Act, in this particular newsletter, I will be discussing Lesbian, Gay, Bi-Sexual and Transgender (LGBT) rights with respect to marriage and adoption in the State of Michigan.
The Issue
Can a “same-sex' couple challenge the Michigan Adoption Code and the Michigan Marriage Amendment?
The Answer
On July 1, 2013, A United States District Court Judge in Michigan refused to dismiss a same-sex couple's complaint against the State of Michigan, Oakland County and others regarding their rights to adopt children as a couple and their right to marry.
The plaintiffs in the case are Ms. DeBoer, a nurse at Hutzel Hospital in Detroit and Ms. Rowse, a nurse at Henry Ford Hospital. They are an unmarried same-sex couple residing in Hazel Park, Michigan.
In 2009, Ms. Rowse, legally adopted child N, she then adopted child J; meanwhile, Ms. Deboer adopted child R. They tried to jointly adopt all three children but section 24 of the Michigan Adoption Code and the Michigan Marriage Amendment hereinafter referred to as (MMA) operate together to completely prevent them from this.
The reason: the MMA does not allow them to marry and section 24 of the Adoption Code only allows either single persons or married couples to adopt children. They cannot get married under Michigan marriage and divorce laws and without being married, they cannot adopt the children together as a couple.
Given this roadblock to their reasonable desire to jointly adopt the three children to whom they are in reality the parents, they filed the federal lawsuit Apriel DeBoer et. al. v Richard Snider, et al, United States District Court, Eastern District of Michigan, Southern Division (NO 12-cv-10285); alleging that section 24 of the Adoption Code violates the equal Protection Clause of the Fourteenth Amendment of the United States Constitution.
They amended their complaint to include a claim challenging the validity of the MMA. The state sought a dismissal of the complaints claiming that the plaintiffs could not demonstrate that the MMA lacks a rational relationship to a legitimate state interest and further that the MMA does not violate due process because two people of the same sex do not possess a fundamental right to marry another individual of the same gender.
The court held that the Plaintiff's claims have sufficient merit to proceed. It noted that the Plaintiffs are prepared to argue that the decision in United States v Windsor (Id.) that invalidated a federal statute of equal protection grounds because it placed same-sex couples in an unstable position of being in a second-tier marriage should apply here.
Moreover the justices expressed concern that the natural consequence of such discriminatory legislation would not only lead to the relegation of same-sex relationships to a form of second-tier status, but also impair the rights of tens of thousands of children now being raised by same-sex couples as well.
The Michigan Federal District Judge states in his opinion that this is exactly the type of harm the plaintiffs seek to remedy in this case. The judge then held that the Plaintiffs are “entitled to their day in court and they shall have it.”
Summation
This means that the lawsuit may now move forward and that Ms. DeBoer and Ms. Rowse will be able to argue their case to a conclusion. The judge will then make a decision and most likely appeals will commence.
It is my opinion that the District Court Judge will rule in favor of Ms. DeBoer and Ms. Rowse which would then invalidate the MMA and section 24 of the Michigan Adoption Code with its restriction against adoption by same-sex couples. This is a problem which has long been a topic of conversation at the Oakland County Bar Family Law Section, particularly where the adopting couple later separates and one member has no rights to parenting time with the child under the current laws.