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State’s case in Michigan marriage equality trial began Monday, one witness has been excluded

LGBT Legal Cases Marriage equality Marriage Equality Trials

Michigan state sealThe state’s case in DeBoer v. Snyder began Monday, and the state’s first witness was rejected by the judge. Sherif Girgis, a law student, was scheduled to offer testimony defending opposite-sex marriage. The judge said Girgis may become an expert witness some day:

“The fact is you’re still a student. Someone else is still grading your papers,” said attorney Ken Mogill, co-counsel for two Detroit-area nurses challenging the gay-marriage ban.

U.S. District Judge Bernard Friedman said Girgis is smart, articulate and bound to become an expert in his field.

“But not quite yet,” Friedman said.

Reuters reports that the judge had a further comment:

U.S. District Judge Bernard Friedman said that Sherif Girgis, a doctoral student in philosophy who wrote a book defending marriage as between a man and woman, did not have enough accomplishments to be considered an expert witness.

“Someday you’re going to be a great witness, but you’re not ready yet,” Friedman said.

Oakland County Clerk Lisa Brown testified on Monday as well. She’s now in opposition to the ban on same-sex marriage. Brown said that if the Michigan marriage ban didn’t exist she’d feel compelled to offer marriage licenses to same-sex couples:

Q: If that ban did not exist what would your position be in term of issuance of marriage licenses to same sex couples?

A: If that ban did not exist I would be issuing marriage licenses to same sex couples who meet all the other legal requirements.

Q: And why is that?

A: Well, looking at the Windsor decision, knowing that my oath is to uphold the constitution and looking at the Supreme Court’s interpretation of equal protection of the law and then, you know, how — I mean, we’ve had other courts now who have interpreted that case as well and supported that, but to uphold equal protection and the constitution I would feel that it’s my duty to issue those licenses.

And she asserted that in upholding the Constitution, her personal opinions are irrelevant:

Q: What if a clerk, a county clerk, is religiously opposed to issuing a same sex marriage license after the final order has been entered, what would you expect —

MS. BRYA: Your Honor, I’m going to object as to speculation.

THE COURT: She can’t speak as to other clerks.

MR. PITT: Q: Fulfilling your duties as County Clerk would you let your personal opinions on any legal matter interfere with your official duties?

A: No, it would be whatever the judge says.

Q: Okay. If there ever was a situation where the law required you to violate some personal principle or religious doctrine of your own, what would you do?

A: My oath is to uphold the Constitution of the State and the country. What my personal feelings are irrelevant.

Q: You would put them aside.

A: Yes. There’s actually — it’s a crime for a county clerk to not give a marriage license to someone who is qualified. It’s a misdemeanor.

An email was entered into evidence, showing that state officials had suggested that no marriage licenses should issue, even if the ban is struck down:

Q: So the email is dated October 16th, 2013, at 2:47 p.m.; correct?

A: Yes.

Q: And the email is directed to whom?

A: Well, it looks like to all of the county clerks in Michigan.

Q: So there’s quite a list like 83 email addresses on here.

A: Yes.

Q: What does the body of the email say?

A: “Status of Michigan law defining marriage.” Sorry, that was the subject. So the email reads, “To All County Clerks, “Even if the U. S. District Court were to decide that Michigan’s Marriage Amendment is unconstitutional in Deboer v Snyder same sex marriage licenses should not be issued. Please see the attached guidance from Attorney General Bill Schuette’s Office.”

Q: Okay. And the attachment was a letter dated what?

A: October 16th, 2013.

Q: Okay. And that’s a two-page letter?

A: Yes.

Q: And tell me if I summarize it correctly that you’re saying that if the Court strikes down the ban there’s going to be a request for a stay?

A: Yeah, that’s eventually in there, the “stay” part. I mean the parts that are in bold and underlined. Like on the first page it’s underlined and in bold, “You are forbidden by Michigan law from issuing a marriage license to same sex couples during the pendency of the appeal.” The word “stay” isn’t in that sentence. The second page another phrase that is underlined and in bold print says, “Since adverse decision is not subject to enforcement while the decision is stayed and subject to appeal.” So on the second page you get “stay” in there, but on the first page in the bold part — you know, if you’re just glancing at it, I mean, it’s a two-page letter. I don’t know how many people stop and read the whole thing in this day and age. But I think especially if you don’t look at the attachment and you just read just the body of the email, you know, you open your email and that’s the part that comes up that says that same sex marriage licenses should not be issued basically — regardless of, you know, what the judge says.

Q: All right. If a final order in this matter is issued striking down the Michigan Constitutional Ban as unconstitutional and you get conflicting instructions from AG Schuette and those instructions conflict with what the order of the Court is, which are you going to follow?

A: Well, my job is it follow what the judge says, not what the AG says.

Q: So if the AG gives you instructions that you feel are in conflict with what the Court has ordered, you’re going to follow the Court; is that correct?

A: Yes.

Q: And you do not report to AG Schuette.

A: I do not.

Q: And you in your official capacity as Clerk you have to decide whether or not his instructions are consistent with your sense of duty and your oath?

A: Yes

Mark Regnerus also testified, apparently for four hours, but EqualityOnTrial hasn’t yet obtained the transcript.

Thanks to Kathleen Perrin for this filing

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

9 Comments

  • 1. Stuart  |  March 4, 2014 at 1:06 pm

    I thought this court case started last week…

  • 2. Ragavendran  |  March 4, 2014 at 1:16 pm

    I think "State's case" means that this week, the State's witnesses are testifying. Last week, it was the Plaintiffs' witnesses who testified.

  • 3. Mike in Baltimore  |  March 4, 2014 at 3:08 pm

    It did.

    In all court cases in the US, the Plaintiffs go first.

    In this case, the state is the defendant, not the plaintiff.

  • 4. JayJonson  |  March 5, 2014 at 7:40 am

    Here is a link to an article in the Detroit Free Press about Regnerus's testimony and its cross-examination. It may be that Regnerus will prove as helpful to us as David Blankenhorn was in the Prop 8 trial, at least after his testimony was sliced and diced by David Boies.
    http://www.freep.com/apps/pbcs.dll/article?AID=20

  • 5. StraightDave  |  March 5, 2014 at 8:00 am

    He's just softening up the whole state for the inevitable fall. When it comes, I expect a giant "ho-hum" except from the fringes and some ritual political posturing, of course. No calling out the National Guard or anything.

    Will the 6th Circuit do a Two-fer with KY like the 10th is doing?

    If Regnerus and the Econ prof were the bottom of the barrel, who are the next states going to call as experts. The bench is pretty thin, guys.

  • 6. Rick O.  |  March 5, 2014 at 8:52 am

    My guess is the same people and references over and over, with perhaps hopeful new turns of phrase like "gender diversity". This is where "conservatives" bleeds into "some people never learn". Religious orthodoxy seldom discards an argument or piece of "evidence".

  • 7. Rick O.  |  March 5, 2014 at 8:55 am

    Is this today's Scopes Monkey Trial? Reflect that 90 years later the same group of people are still at it, most recently with the East Dover/Intelligent Design case.

  • 8. ebohlman  |  March 6, 2014 at 2:48 pm

    Worth pointing out that the judge in the latter case is the one hearing the PA marriage case. BTW, did he ever rule on PA's abuse of discovery where they were asking for details of the plaintiffs' sex lives and the like?

  • 9. StraightDave  |  March 5, 2014 at 9:07 am

    @Rick O: Religious orthodoxy seldom looks at a piece of evidence

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