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A few last-minute updates in DeBoer v. Snyder

LGBT Legal Cases Marriage equality Marriage Equality Trials

Michigan state sealThe Michigan marriage equality trial, DeBoer v. Snyder, has wrapped up, but parties to the case are still submitting filings.

The judge has said that about two weeks are set out in his schedule to work on an opinion (which shouldn’t necessarily be taken as a statement that his decision will be out in two weeks), and asked the parties to submit proposed “findings of fact” and “conclusions of law” for review. These are just the facts each party wants included in the opinion, as well as each legal conclusion.

The plaintiffs’ proposed findings of fact and conclusions of law can be read here.

The state’s proposed findings of fact can be read here. Their proposed conclusions of law can be read here.

The state has also filed a final brief in the case, although the judge had said he had enough briefing, and specifically asked for findings of fact and conclusions of law. The state’s final brief can be read here.

Thanks to Kathleen Perrin for these filings

For more information on DeBoer v. Snyder from The Civil Rights Litigation Clearinghouse, click here.


  • 1. Rik  |  March 11, 2014 at 10:28 am

    Wow the state's claims of harm for extending marriage equalities are all vague notions of messages that it would be sending. And one finding of facts is that the effect would be "unclear". They really have no case.

  • 2. PDx_Str8_Supporter  |  March 11, 2014 at 10:53 am

    Did the state just invoke Baker??? I thought that horse was long dead…why are we still beating it?

  • 3. StraightDave  |  March 11, 2014 at 11:04 am

    Until SCOTUS mercifully puts a stake thru its heart and burns the body in public, there will be people willing to accept $$ for beating that horse. There's no rule that says you have to believe everything you say.

  • 4. JayJonson  |  March 11, 2014 at 11:11 am

    Another sign that they have no case at all. If Judge Friedman falls for this nonsense, then all the suspicions about his conducting the trial were justified. On any scale, the attorneys for the state were simply outclassed. Their "experts" were fringe wingnuts, their legal analyses might have passed muster ten years ago, but are now hopelessly outdated.

  • 5. davep  |  March 11, 2014 at 11:12 am

    That new 'final briefing' from the state is pretty funny stuff. The first part is basically saying 'Hey, let's just forget all about this whole court trial thing we've been doing here to determine if that public vote resulted in a law that violated the Constitution. It should really just be decided by a vote of the public, and that should be the end of it, and we just shouldn't pay attention to any questions about whether the public is voting to do something that violates the Constitution. Just, you know, because voting is great.'

  • 6. Michael Grabow  |  March 11, 2014 at 11:16 am

    The core understanding that marriage exists to unite a man and a woman for procreative and child-rearing ends has never changed across time.


  • 7. StraightDave  |  March 11, 2014 at 11:35 am

    Yeah, unreal, but that's not the half of it. That finding of "fact" was attributed to the hearing transcript of the testimony of Nancy Cott, who was the plaintiff's witness. There is no way she would have said anything like that. Unless it was manufactured from thin air, those words might possibly have come during cross exam from the state's attorney, in the form of something like "Dr Cott, what do have to say about the fact that 'The core understanding that marriage exists to unite a man and a woman for procreative and child-rearing ends has never changed across time?' "

    Calling it disingenuous doesn't begin to describe presenting this as a finding of fact. Almost stretching the bounds of professionalism. I know there sometimes appears to be no rules in love, war, or trials, but this one feels over the line for me. The only thing that makes me feel better is knowing they're about to lose the farm.

  • 8. Zack12  |  March 11, 2014 at 11:48 am

    They really have nothing. If the judge rules in favor of this garbage, then we'll know that his plan was to throw a wrench in the gay marriage works.
    On the other hand, the same logic being used in the adoption ban is also used for the marriage ban itself, so it would kill two birds with one stone.

  • 9. Bruno71  |  March 11, 2014 at 12:36 pm

    I'm hoping the judge is conservative with a small "c" in terms of how he timed the proceedings. Last year he basically said that he'd take direction from SCOTUS on the issue. Now he has direction, and a fallacy of a defense of the law in front of him, so it'd be really surprising if he somehow spun this into a cause celebre for the bigots.

  • 10. sfbob  |  March 11, 2014 at 1:01 pm

    If your finding of fact begins with "Social Science findings indicate…" and concludes by citing Allen and Regnerus, you don't have a "finding of fact" at all. You have pure, unadulterated b.s.

    And that's just one of the supposed "findings of fact." The others are equally dubious.

  • 11. Rob  |  March 11, 2014 at 3:06 pm

    I wish I could share in the sentiment here, but I have the nagging feeling that this case has gone under the national radar and can come back to bite us. The closing statements by the Michigan Asst AG were actually a good summary for the State's case. Our side simply closed out by saying the State had made our case and nothing more needs to be said. Sounds like a bit of hubris and arrogance. A final summary of debunking their "science" would have been timely as the last words for the judge to hear in the case. From what I gather on another blog, the judge seemed taken aback by this tactic. I believe he is well in his 70's. I want to marry my partner and we don't want anything to do with kids, and here this case may prohibit us to marry for the sake of "the kids.". Hope I'm wrong, but the smugness worries me.

  • 12. Rik  |  March 11, 2014 at 3:14 pm

    that is disappointing to hear.

  • 13. Straightally  |  March 11, 2014 at 3:41 pm

    I doubt that a 'final statement' has any significant influence on its outcome – hearing witnesses is important at oral arguments, but the judges mostly rely on the briefs, since that's where the arguments are spelled-out very well.

    Besides, any ruling will most likely be stayed, so you'll need to wait for a SCOTUS decision on state-anti-marriage laws.

  • 14. bythesea  |  March 11, 2014 at 3:51 pm

    So you feel this was so mishandled that the judge will rule against us, be upheld by the 6th and then either upheld or SCOTUS doesn't hear the appeal?

  • 15. Christian  |  March 11, 2014 at 3:58 pm

    I don't know if their arguments even could pass muster 10 years ago. Didn't work in MS in 2003 or in California in 2004/2008.

    Or in Iowa in 2009. Really whenever M.E. is approached in a non-prejudiced light, the facts win the day and it doesn't matter what decade it happens in so long as that's the case

  • 16. Rob  |  March 11, 2014 at 4:10 pm

    It's the fear that this "science" would be parroted in other rulings, if successful here, and in doing so, would slow down our progress.

  • 17. RobW303  |  March 11, 2014 at 4:40 pm

    I found it interesting that they quote the 59% popular opposition to same-sex marriage in 2004 but ignore that now the majority of Michiganders supports SSM (54%-36% per the latest poll I saw). Instead they only say the continuing opposition is legitimized because the current contingent of elected representatives still opposes SSM (despite the evolved will of the voters on this issue). Hypocrisy in action?

  • 18. Steve  |  March 11, 2014 at 5:55 pm

    Closing arguments are 99,9% theatrics. As such they are important in jury trials. But judges usually know better.

  • 19. Sagesse  |  March 11, 2014 at 6:32 pm

    I seem to recall reading a summary that said the plaintiffs made a closing argument, as did the state. The plaintiffs just declined to make a rebuttal. Please correct me if I am remembering incorrectly.

  • 20. Dann  |  March 11, 2014 at 6:43 pm

    Rob, don't believe everything you read on other blogs. The judge is the one that suggested to combine the adoption with marriage into 1 case. This, IMO is no way was a tactic to "kill two birds with one stone." The state has no case. Tradition, procreation, blah blah blah don't hold water. I'm confident justice will prevail here just as it has in the last 6 ME cases. I think your feeling anxious and nervous.

  • 21. montezuma58  |  March 11, 2014 at 6:52 pm

    That is the correct. Both sides made their closing statements. The plaintiffs had the option for a short rebuttal after the state's closing arguments but did not use it.

  • 22. Tim  |  March 11, 2014 at 9:01 pm

    So if the plaintiffs summarized their case in their closing arguments and the state did in theirs and then, in rebuttal, the plaintiffs said nothing the state said changed the law or facts – then I think this may be a case when saying less is saying more. And that's what drove home the point.

  • 23. Sagesse  |  March 12, 2014 at 3:27 am

    From Keen News:

    DEPOSING A DETRACTOR: Attorneys for the National Organization for Marriage will depose gay activist Fred Karger today in a lawsuit in which NOM accuses the Internal Revenue Service of unlawful disclosure of confidential tax information to the Human Rights Campaign. Karger has made it a mission to publicize NOM’s alleged failures to file information on its activities with various federal agencies. And in its lawsuit, NOM v. U.S., the NOM claims Karger allegations have been based “solely on confidential tax return and donor” information, including the names and addresses of NOM’s donors. Although the suit is filed in federal court in northern Virginia, Frontiers newsmagazine reported yesterday that Karger will be deposed in Los Angeles.

    Should be interesting, if only because Fred Karger is one of the most articulate and thorough investigators of NOM misbehaviour.

  • 24. grod  |  March 12, 2014 at 6:30 am

    Rob, I too acknowledge a nagging feeling that over-confidence could boomerang and hurt. While waiting for Judge B. Friedman’s decision why not take comfort by reading such briefs as the one recently submitted by the 15 AGs.… . These AGs wrote in Kitchen & Bishop as well as in the Sevcik brief: "All States share a paramount interest in the healthy upbringing of children. Excluding same-sex couples from marriage works against this interest. Denying same-sex couples the benefits of marriage has the unavoidable effect of denying their families those benefits as well—an outcome that can harm children. In fact, some of the many rights and protections provided by marriage directly affect children." Michigan’s AAG is not on their post-Windsor page. Immediately following Windsor, many commentators wrote that Windsor affirmed the states’ supremacy with respect to family matters. It’s the point of view adopted here. Later commentators and increasingly judges noted the importance of the ‘conditional clause’ in Justice Kennedy’s sentence:- ‘subject to certain constitutional guarantees’. These guarantees include fundamental rights to liberty, privacy and association vested in each American – not in each state or not, as contended here, the vote of the people’s majority. Michigan's AAG somehow forgot that minority civil rights, particularly fundamental rights, can not be infringed by the people’s majority or by the state. Also forgotten is that fundamental rights and marriage [being sought here] – not same-sex marriage, not gay marriage but Marriage – as an aspect of these fundamental rights, are subject to heightened scrutiny – not rational basis review. What struck me as bullheaded arrogance is to assert to Judge Friedman: header "C" p 14: "Trials are unnecessary in rational-basis cases, such as this one”. Finally to declare the Baker v Nelson controls -' want of a federal question', when the Supreme Court just heard Prop 8 and Windsor and when currently there are some forty cases in 26 states suggest imo an AAG who wears rose colour glasses. I’ll leave to others the statement that adoption is not a fundamental right. What happened to the best interest of children, the state's compelling interest?

  • 25. Marriage Equality Round-U&hellip  |  March 12, 2014 at 8:46 am

    […] USA, Michigan: Parties in the marriage equality case are still submitting filings in the case, even though the trial has ended. full story […]

  • 26. sfbob  |  March 12, 2014 at 8:49 am

    So they're suing him for illegally disclosing the names of donors whose names they illegally refused to disclose. That should be interesting.

  • 27. Lucinda  |  March 12, 2014 at 9:44 am

    Thank you so much for the links to these documents. I so enjoyed the statements by the plantiff's attorneys and howled at the craziness of the state attorney's conclusions. I have also appreciated the thoughtful comments. Thanks to all. I certainly don't see how the judge can possibly side with the state—so many, many holes in their "arguments".

  • 28. Rob  |  March 12, 2014 at 9:53 am

    Thanks grod and to the other posters for putting me at ease a bit about this case. Consider me now to be cautiously optimistic :)

  • 29. Mike in Baltimore  |  March 12, 2014 at 1:22 pm

    Lots of those 'findings of fact' are so ludicrous, IMO.

    For instance, item 28, where the state's 'finding of fact' is:
    "The gay and lesbian population is small. The percentage of children raised by same-sex couples is less than one percent."

    The 2013 estimate of population for Michigan is 9,895,622. 1% of that population would be well over 90,000 (almost 100,000). .5% of that population would be well over 45,000. That would be more than the capacity (41,681, rarely attained) of Detroit's Comerica Park (home of the Detroit Tigers). I don't think the state of Michigan would consider a sold-out Comerica Park to be holding an insignificant number of people.

  • 30. Ragavendran  |  March 12, 2014 at 1:58 pm

    Rob, while nobody can predict what this judge is going to do, I want to reassure you that our side (Mogill) did make what I think is a very strong closing argument, contrary to what you may have heard elsewhere:
    Following this, attorney for the clerk (Pitt) presented his closing argument too. While this was focused at the clerk's rights and responsibilities, it also packed some punch:
    The State went last, Heyse delivering the arguments. Then, for the rebuttal by Mogill, he said that there is nothing more to be said as his earlier closing arguments already covered everything that Heyse had said, and there wasn't a need to clarify anything:
    So, cheer up, and let's all hope for good news in the coming weeks! Cautiously optimistic is right!

  • 31. Ragavendran  |  March 12, 2014 at 2:02 pm


  • 32. Josh  |  March 12, 2014 at 6:47 pm

    Bravo!! :)

  • 33. grod  |  March 12, 2014 at 8:48 pm

    Ragavendran: Co-defendant Lisa Brown – you have courage! Yes, the co-defendant clerk for Oakland County Clerk had guts to say on closing: Here's a selection – The State has given no evidence to justify their arguments…. There is no evidence that opposite sex marriages will be harmed. The harm to same sex families is REAL, not abstract and speculative… The Clerk requests that the Court, if striking down the ban, explicitly restrain the State from in any way interfering with issuing marriage licenses to same sex couples, and further state that any interference will be deemed a violation of this Court’s Order……. Thank you for posting these links for Rob and for all of us!

  • 34. Ragavendran  |  March 12, 2014 at 8:53 pm

    You're welcome! Though, I have to pass on the credit for finding these links to bayareajohn – I first saw this blog in one of his comments under the previous post on this case:

  • 35. grod  |  March 12, 2014 at 9:03 pm

    Tim: Please read Oakland Co. Clerk's closing. ZING! Who might have expect that the Defendant State's closing arguments would be pummeled by its co-defendant! Courageous.

  • 36. bayareajohn  |  March 12, 2014 at 10:11 pm

    The most disturbing thing about the "findings of fact" and "conclusions of law" by the State of Michigan is the earnestness apparent in their promoting what is so clearly self-conflicting buffalo chips. Gays have it good, there's hardly any of them anyway, and allowing them to marry will wipe out the human race. And anything but biological parents are just too damaging to allow, but adoption is cool, but not for gays because we just don't know about them and we have the right to make up our own rules about it, but we have no animus toward them, and besides we've -always- discriminated against them. Yikes.

    While it's hard to conceive that a Judge could miss the gaping holes in these arguments, it is clearly possible that he could be as blind to reality as the defendants. Thank heavens for the record, because if not here, somewhere above may be sanity.

  • 37. Ragavendran  |  March 12, 2014 at 11:10 pm

    In addition, let's not forget that if the judge decides that the marriage ban does withstand rational basis review, he has promised to hold a second trial to determine if heightened scrutiny should be applied:

    So, at the moment, we have two lifelines :)

  • 38. Pat  |  March 13, 2014 at 1:45 am

    LOL. Love your summary!

  • 39. davep  |  March 13, 2014 at 11:08 am

    I think the 'argument' that implies 'giving same sex couples a civil marriage license will cause the human race to die out' is especially crazy. How does this document and the legal status it conveys cause that? Do they think all of the marriage license forms given to same sex couples are a special version printed on paper made from 100% Ebola virus? Do they think that a gay widow receiving a monthly Social Security survivor benefits check will upset the straight guy who lives next door so much that he will lose the ability to get an erection?

  • 40. sfbob  |  March 13, 2014 at 11:41 am

    This one always struck me as particularly nonsensical too. They must think the "urge to be gay" is so overwhelming that 95% of heterosexual couples will divorce each other and (in the immortal words of Cary Grant) "suddenly go gay."

    Realistically, if we assume the upper limit estimate that 10% of the population is gay or lesbian, that leaves 90% of the remaining population continuing to marry and reproduce heterosexually. Just as they've been doing all along.

  • 41. bayareajohn  |  March 13, 2014 at 12:20 pm

    The linkage seems so obvious to the Catholic Church who authored the referenced "evidence":
    1. Procreation is required to populate the Earth.
    2. Gays can't procreate.
    (You know they aren't into that whole "numbers" thing, it's too sciencey.)

  • 42. bayareajohn  |  March 13, 2014 at 12:35 pm

    Actually, the "fear of dying out" may come from a religious conviction that homosexuality is caused by a demon, and being permissive to it will cause the demon (or "the Devil") to multiply in strength, eventually taking over so many people that procreation can't keep up. Or maybe some of the loudest proclaimers of this line of logic are just terrified by a threat to their own closet integrity, and if Gay was acceptable, they'd just HAVE to get some, and they suppose everyone else feels that way too.

    Or it could be fear of that whole storm/earthquake/disaster thing we bring on when we are too public, you know, "GAYNADO".

  • 43. ebohlman  |  March 13, 2014 at 7:00 pm

    I'm inclined to think that the people who use that argument are narcissists who want others to credit their marriages as acts of pure selfless sacrifice rather than acts of following their desires. In order to do that, they have to claim that they're doing something that most people really don't want to do and only do because they're righteous people. They want others to view them as martyrs.

    Before marriage was on most people's radar, they were saying the same thing about sex: if they can make the sacrifice involved in abstaining from gay sex, why shouldn't gay people be expected to make the same sacrifice? I used to say that this was like someone giving up smoking for Lent when they've never smoked. Now I say it's like giving up sniffing glue for Lent when you've never sniffed glue. I may have re-watched Airplane! a couple times in between.

    The technical term for this is "no-cost virtue".

  • 44. StraightDave  |  March 13, 2014 at 10:25 pm

    Less that 1%, eh? Well I guess we're not looking at a whole lot of unknown harm then, are we? Is that their point? :)
    Scads of harm but not enough people to count. Yeah, that's real persuasive, guys.

  • 45. StraightDave  |  March 13, 2014 at 10:36 pm

    Well, I happen to believe that all those gay closeted Catholic authorities think the entire world is actually gay. After all, they and all their close friends are. So they naturally assume that if there were no social or legal restrictions, everyone would enter non-procreative marriages and Poof! goes the planet. God runs out of children and gets very lonely. And it's all our fault for not stifling our urges. They managed to do it, so why shouldn't everyone else.
    (This is not entirely tongue in cheek, mind you.)

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