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State defendants in Michigan marriage equality lawsuit ask federal judge not to split trial in two parts

DeBoer LGBT Legal Cases Marriage equality Marriage Equality Trials

DeBoer plaintiffs. Attribution: The New Civil Rights Movement
DeBoer plaintiffs. Attribution: The New Civil Rights Movement
The state officials defending Michigan’s anti-gay marriage and adoption laws from constitutional attack in federal court are asking the judge to limit the issues he will hear at trial. According to their new filing, the defendants believe the court should not consider the issue of whether a heightened level of judicial scrutiny should apply here, and thus there’s no need to split the trial in two parts, as the plaintiffs have suggested.

Last month, the same-sex couple plaintiffs in the case asked the court to split the trial into two parts: part one for the basic constitutional issues related to the state’s marriage and adoption laws, and part two to hear evidence and testimony related to whether sexual orientation warrants a heightened level of judicial scrutiny. The question of whether courts should view laws targeted at sexual orientation more suspiciously is being debated throughout the federal courts; if judges were to take a more skeptical view of these types of laws, the burden would shift to the state defendants to explain why the laws are constitutional. The original request noted that if the judge hears the first part of the trial and decides there’s no need for evidence on the level of scrutiny, the second part could be canceled.

The new filing from the state defendants suggests several reasons not to split the trial into parts: the state believes that the more lenient rational basis review applies, and argues that even if it doesn’t, evidence related to the level of scrutiny can be presented at the same time as any other trial issue. The filing also suggests that the original order setting up the trial states that ““[w]hether any of [the State’s] justifications can survive rational basis review in the present case must be determined after trial.”” According to the filing, this language prevents arguments on the level of scrutiny.

In any event, the defendants urge the court not to hear evidence related to that point at all, because the level of scrutiny is a “purely legal issue.” The judge will decide on the motion soon.

Thanks to Kathleen Perrin for this filing


  • 1. Lymis  |  December 13, 2013 at 10:41 am

    I'll agree that there is no need to hear evidence on the level of scrutiny, because by the standards clearly set and often repeated by the US Supreme Court, it's unquestionable that heightened scrutiny applies. We meet every single criteria for it with no meaningful possibility of disagreement.

  • 2. Eric  |  December 13, 2013 at 10:54 am

    Marriage is a fundamental right, or so SCOTUS has said fourteen times, why would rational basis apply?

  • 3. Steve  |  December 14, 2013 at 7:21 am

    Because the gay makes everything different

  • 4. Mike in Baltimore  |  December 13, 2013 at 1:36 pm

    Sounds to me like the state of Michigan doesn't want the blatant discrimination of not allowing Marriage Equality to be discussed as would happen if the trial is split into two parts, with one part to be a determination of what level of scrutiny to apply.

  • 5. Marriage Equality Round-U&hellip  |  December 14, 2013 at 7:36 am

    […] USA, Michigan: State officials are asking a federal judge to deny a same-sex couples request to split a marriage equality trial into two parts. full story […]

  • 6. Seth From Maryland  |  December 14, 2013 at 1:22 pm

    anyone know how the case in Arkansas went? , i saw some comments saying it went pretty we for our side but i'm not sure ,

  • 7. bayareajohn  |  December 14, 2013 at 4:59 pm

    Once again, desperate word games. The original order cannot be held to be a finding of fact on matters not yet heard. And in any case, an intent to find if the justifications meet rational review does not preclude other findings, including that rational review is inappropriate, and that heightened scrutiny bars the justifications. "The filing also suggests that the original order setting up the trial states that ““[w]hether any of [the State’s] justifications can survive rational basis review in the present case must be determined after trial.”” According to the filing, this language prevents arguments on the level of scrutiny." – High school level debate logic. The Judge will not be amused at this childish attempt to preclude review, and it's a good way to start for our side.

    Yet another reason I am FROM Michigan instead of IN Michigan. Getting married this week after 20 years with my guy in California.

  • 8. davep  |  December 14, 2013 at 6:53 pm

    Congrats, John! (you can call me 'bay area Dave').

  • 9. JustMe  |  December 15, 2013 at 5:45 am

    To quote Justice Alito:

    "The degree to which this question is intractable to typical judicial processes of decisionmaking was highlighted by the trial in Hollingsworth v. Perry, ante, p. ___. In that case, the trial judge, after receiving testimony from some expert witnesses, purported to make “findings of fact” on such questions as why marriage came to be, Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 958 (ND Cal. 2010) (finding of fact no. 27) (“Marriage between a man and a woman was traditionally organized based on presumptions of division of labor along gender lines. Men were seen as suited for certain types of work and women for others. Women were seen as suited to raise children and men were seen as suited to provide for the family”), what marriage is, id., at 961 (finding of fact no. 34) (“Marriage is the state recognition and approval of a couple’s choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents”), and the effect legalizing same-sex marriage would have on opposite-sex marriage, id., at 972 (finding of fact no. 55) (“Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages”). At times, the trial reached the heights of parody, as when the trial judge questioned his ability to take into account the views of great thinkers of the past because they were unavailable to testify in person in his courtroom. See 13 Tr. in No. C 09–2292 VRW (ND Cal.), pp. 3038–3039. And, if this spectacle were not enough, some professors of constitutional law have argued that we are bound to accept the trial judge’s findings—including those on major philosophical questions and predictions about the future—unless they are “clearly erroneous.” See Brief for Constitutional Law and Civil Procedure Professors as Amici Curiae in Hollingsworth v. Perry, O. T. 2012, No. 12–144, pp. 2–3 (“[T]he district court’s factual findings are compelling and should be given significant weight”); id., at 25 (“Under any standard of review, this Court should credit and adopt the trial court’s findings because they result from rigorous and exacting application of the Federal Rules of Evidence, and are supported by reliable research and by the unanimous consensus of mainstream social science experts”). Only an arrogant legal culture that has lost all appreciation of its own limitations could take such a suggestion seriously."

  • 10. bayareajohn  |  December 15, 2013 at 12:14 pm

    Alito and Scalia are quick to call precedent either an unyielding fundamental bastion of ordered society, or a quaint and arrogant blockade to common sense, depending on how they feel about the subject matter.

  • 11. Dr. Z  |  December 15, 2013 at 6:46 pm

    The point being…?

  • 12. Two Dads  |  December 17, 2013 at 7:56 am

    You're not good a trolling. You're boring at it :/

  • 13. Dr. Z  |  December 15, 2013 at 6:44 pm

    Towleroad is reporting that a lesbian couple has been kept waiting for NINE YEARS on their lawsuit challenging Oklahoma's DOMA law:

    Are there any checks and balances in the judiciary to prevent these outrages? Or can this judge just stall and ignore this couple without risking any punitive sanctions of ANY kind?

  • 14. Policy and Legal Update &&hellip  |  December 16, 2013 at 7:00 am

    […] MICHIGAN  •  On 13 December 2013, in April DeBoer & Jayne Rowse v. MI Governor Rick Snyder, et al., in a challenge to the constitutionality of the state’s 2004 ban on same-gender marriage, civil union, domestic partnership, and joint adoption, the defendants asked that the trial not be split into 2 parts:  (1) constitutionality of marriage/adoption laws; and (2) deciding what scrutiny level is required when judging laws that discriminate based on sexual orientation, and asked the court to ignore which level of judicial scrutiny applies to laws that discriminate against same-gender couples.  •  MEUSA Summary  • News Source […]

  • 15. CValner  |  February 16, 2014 at 7:19 am

    In anticipation of the upcoming Feb. 25, 2014 Michigan same-sex marriage and joint adoption trial, a slideshow set to music of the 10-16-2013 Michigan Marriage Challenge Rally outside Detroit Federal Courthouse prior to DeBoer vs Snyder motion hearing on Michigan same-sex marriage equality and joint same-sex adoption.
    [youtube ibChoON5_o4& youtube]

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