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Federal judge: Michigan gay marriage ban will go to trial

AP Photo/Paul Sancya

April DeBoer, second from left, sits with her daughter Ryanne, 3, left, and Jayne Rowse, fourth from left, and her sons Jacob, 3, middle, and Nolan, 4, right, at their home in Hazel Park on March 5, 2013. The couple's desire to adopt each other's children has grown into a ground-breaking challenge to Michigan's ban on same-sex marriage.

A federal judge said Wednesday that a lawsuit filed by a lesbian couple seeking the right to wed in Michigan will go to trial early next year in a long-awaited legal challenge to the state’s same-sex marriage ban.

U.S. District Court Judge Bernard Friedman said the issue merited a trial, starting Feb. 25, in which parties would examine whether the Michigan Marriage Amendment, passed by voters in 2004, served a legitimate state interest. The couple and the state had sought an immediate ruling.

“There’s always some sentiment that justice delayed is justice denied, but they (the couple) understand that this is a very long process and now it’s just going to be a little bit longer than we had initially anticipated,” said Dana Nessel, an attorney for the couple. “They said all along that they’ll do anything that they have to, to protect their children, and if what they have to do is go to trial on this matter then that’s a small price to pay for them in order to secure legal rights to their children.”

At least 11 county clerks offices had been poised to issue licenses to gay couples if Friedman had ruled in favor of overturning the same-sex marriage ban, according to LGBT advocacy group Equality Michigan. 

April DeBoer and Jayne Rowse of Hazel Park, Michigan, initially brought the case seeking to adopt one another’s children – a right denied to gay couples in Michigan. But Friedman had encouraged the pair, who have three young special-needs children, to go further and challenge the marriage ban instead – which they did.

Several dozen supporters of the couple rallied outside the federal courthouse in Detroit before the hearing, according to WDIV-Detroit.

A Ronald Reagan appointee, Friedman held off further hearings in the lawsuit earlier this year to see how the Supreme Court would rule this summer in cases challenging anti-gay marriage laws at the state and federal level. In both cases, the justices ruled in favor of gay marriage rights. 

In the majority decision striking down a key part of the ban on federal recognition of same-sex marriage, Justice Anthony Kennedy cited the harm done to gay couples and their children by denying them a legally sanctioned relationship. Nessel said she believed that gave Friedman “great Supreme Court authority on which to hang his hat for a ruling in our favor.” 

“We felt very much as though that was a signal,” she told NBC News last week.

For DeBoer and Rowse, the most important part of their case isn’t about the right to marry but about the right to adopt one another’s children – Nolan, 4, Jacob, 3, and Ryanne, 3.

“Our kids go unprotected by the laws, and that’s the most hurtful and damaging thing to us,” Rowse, a 49-year-old emergency room nurse, said last week. “The marriage act is secondary to what our goal is -- to second-parent adopt our kids so that we both are recognized as legal parents and not legal strangers.”

Added DeBoer, 42-year-old nurse: “Our children could be taken by family members or even complete strangers if the judge deems that a gay person isn’t fit to be a parent. I have no legal standing, I have no legal rights, to my sons.”

Gay rights activists have also filed lawsuits challenging gay marriage bans in many states since the Supreme Court decisions, including Pennsylvania, New Mexico and Virginia, though some litigation was underway in other states, such as New Jersey. (Gay couples can begin getting married there on Monday though the lawsuit is ongoing).

“The Supreme Court decisions are probably responsible for some but not all of the recent lawsuits,” Michael Klarman, a Harvard Law School professor and author of “From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage,” wrote in an email. He noted that the decision in the federal law case “seems to invite challenges to state bans on same-sex marriage.”

“Much of what Kennedy says in his opinion, e.g. the concern about children being raised by same-sex couples, seems directly applicable to state bans on same-sex marriages.”

Thirty-five states, including Michigan, ban same-sex marriage, while 13 states plus the District of Columbia allow it, according to the National Conference of State Legislatures.