Sunday, March 9, 2014

A Lesson in Balance

When I came out in 1990, I had traded my right to get married for my need to be true to myself.  To me, compared to languishing in the closet, having one less piece of paper seemed like a fair trade off.  At 22 years old, it didn’t occur to me that a marriage license was much more than a piece of paper.  It is a legal document that entitles two people to all of the benefits and protections of a legal marriage.  It is also a legal document that compels one into added responsibilities to another human being, building a family (with or without kids) and a life together. At 22, I didn’t think about the financial, moral, medical or mortal affects that having or not having that piece of paper entailed.  Now I have a better idea, and that piece of paper has become more important to my life partner and I than I had ever imagined.  As the possibility of getting legally married looms closer, I find myself placing more emotional value into that piece of paper.

Needless to say, I’ve been closely watching the trial about the anti marriage amendment challenge in my home state of Michigan.  I have been following Equality Michigan on Facebook, reading online articles from the Detroit Free Press, the Huffington Post, MLive, just soaking up all the information I can find.  Before the trial began, even before the hearing for requests for summary judgement, I thoroughly read the briefs on both sides, and read the judgements from several of the cases cited there, most especially Loving vs Virginia.  

My partner, a couple friends and I have also been Driving to Detroit for rallies and to sit in the courtroom for this amazing History making trial, deftly handled by Judge Friedman and his staff, and the lawyers involved.  We attended the hearing for summary judgement, opening arguments, a couple days of testimony and the closing arguments.  Now, we wait for his ruling, which he expects to post online within a couple of weeks.

I have been journaling a lot about this trial.  I took notes at each session that I attended, and I am drawing upon them for my journaling.  I will try to get around to eventually posting all or most of them (some aren’t written yet). Here, I am starting with the last one first, since it is the one freshest on my mind, and probably of most immediate interest to most…

(from my journal Friday night, March 7, 2014)

Today, they had closing arguments.  Deb and I did end up going, and just in case we had to jet off to the Genesee County Courthouse from the Federal Courthouse in Detroit  to get immediately married, When she picked me up from work in the morning, Deb brought our marriage license application, fees, birth certificates, and our rings.

The male attorney for the DeBoer-Rowse teamKenneth Mogill, did the first closing argument.  He reserved 5 minutes at the end to make a rebuff statement (all he did for that was to go up to the podium and say he had none, but he was the first and the last one at the podium.)

He did a really beautiful job of sticking with the issue at hand:  the constitutionality of the anti-marriage amendment (also known as the ban against same sex marriage).  His first, or one of his first statements was, “The promise of America is the promise of equality.”  He pointed out that there are 2300 LGBT couples raising over 5300 kids in the state of Michigan.  He also said “Equality before the law does not yet exist.”  He pointed out that “marriage is a Fundamental Right.”  (He didn’t even resort to referencing the Loving v Virginia case, which had that phrase front and center in the decision, but he did mention due process and the 14th amendment.)  He went on to say that no other group has to establish their fitness as parents in order to get married.  He pointed out that when ministers marry people, they are performing a religious ceremony, with the added weight of a civil recognition of that marriage.  He said that churches and ministers already have the right to decline to marry people that don’t meet certain benchmarks of their faith, but that the sate cannot deny a CIVIL ceremony.  He talked about “traditional marriage” as having evolved from a male being in charge of a subservient woman, to being an egalitarian agreement between two people.  He said “the tradition that is most important in American Marriage is the capacity to change”.  In closing, he read a quote from Mrs Loving on her 40th anniversary, "Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don't think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the ‘wrong kind of person’ for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry."  He sounded like he was trying not to cry when he read it, and many in the courtroom were wiping their eyes, including the plaintiffs.

The next lawyer to present closing arguments was Lisa Brown’s lawyer, Michael Pitt.  Brown is the Oakland County Clerk and is named as a defendant in the case, but wants the plaintiffs to win.  Her lawyer said a bunch of things, repeating stuff from the trial that had already been covered.  One of the things he mentioned is that Lisa Brown doesn’t report to, nor is she obligated to follow orders from Bill Schuette, the Michigan Attorney General.  I think he mentioned that the application update is being railroaded by the state (or, I may have just added that in my own head).  There were a couple of things that were particularly eloquent as well.  He said that the state has proceeded in “breathtaking hypocrisy” by denying equal marriage rights to LGBTQ people.  He also said “this state sanctioned humiliation must end, and it must end now”.  He asked Judge Friedman for an injunction to halt the discriminatory practice of denying the right of marriage to LGBT couples.  He asked that it go into effect immediately.  He asked that, in light of Attorney General Schuette’s letter to all of the county clerks of Michigan, that Judge Friedman make it very clear that a refusal to issue same sex marriage licenses would be a violation of his court order and therefore a violation of the law, regardless of the personal beliefs of the individual county clerks.  He also requested that Judge Friedman not issue an immediate or automatic stay on his own decision.

As I write this, I have to pause here just to first, absorb the support and words that these two lawyers are showing to the entire LGBT community.  They know that this case is specific to the DeBoer-Rowse family, but they also appear to be very cognizant of it being not about one family of five, they appear very aware of it being about ending codified discrimination against an entire class of people, that they are fighting for millions of LGBTQ people and their allies all across the state, the country, perhaps even all around the world.  They also both seem to feel very passionately, personally, about fighting injustice and bout equal rights.  They are both white men in their 50s or 60s, and I didn’t get a gay vibe from either of them.  

I am also pausing here a moment to brace myself before writing about the state’s closing argument.  It is hard, because I was just plain offended and pissed off as she spoke.  It was very hard to sit silently by.  Deb, our friends and I all whispered rejoinders while she talked.  All of us were offended and angry by what she was saying.  So, again, I pause to think how to phrase my narrative without too much derision.  Even looking over my notes tied my guts in a knot.  While she was talking, I had scribbled across the middle how mad I was (not using the word “mad”).

The state’s lawyer,Kristin Heyse began by saying she was only going to briefly touch upon the adoption issue, because the marriage ban is really what is at the heart of this case.  She said, “there is no Fundamental Right to adopt”.  She said that the rules are the rules, and just because they don’t like them, they cannot just change them.

Then, she moved on to the marriage ban.  She kept insisting that the “rational basis” criteria be used in this case.  She asked this question, “could reasonable people have their own reasons for voting for the marriage ban?”  (My answer is NO!)  She said that this trial is about science, not about the religious beliefs of the scientists (see sidebar for articles discussing this).  She went on to say that it is rational to believe that society should promote the “ideal family,” that of a married mother and father, raising their biological children together.  (It was really hard for me to write that last sentence, just so you know.  My goddaughters are adopted, one of my nephews is adopted, they are loved as much as any biological child could be.  Adopted kids are wanted kids.  It’s not like you are likely to “accidentally” adopt a kid, or have an “unplanned” adoption.)  This lawyer continued on to say that 1.7 million voters each had their own reasons for voting the way they did.  She asked, based upon this case, (I’m not sure of the exact phrasing, so even though I’m adding quotation marks, think of them as accent marks)  “Did the plaintiffs prove that they had rational basis to overturn the amendment?”  (This was just another reminder that the plaintiffs carry the burden of proof, not the defendants.)  This is how she answered her own question, “The question isn’t even ‘is it rational to exclude them.’  The question is, ‘is it rational to INCLUDE them?’ ”.  The judge’s eyebrows went up at that statement.  (I must admit that my mind kind of blanked to white hot anger for a moment when she said that.  Even now, hours later, I still got angry all over again when I read that sentence.)  That, right there, is their whole case summed up in a tidy bow.  

She did acknowledge that marriage bans are being struck down all over the country, but in doing so, she outlined some of the differences between this case and those others.  She said that those cases didn’t take into consideration that the social science is too new to determine if allowing same sex marriage would be harmful to the institution of marriage and to family outcomes.  She said that the other cases didn’t take into consideration that the best home for children is one in which the parents are one male and one female, married to one another, raising their own biological children.  The reasons for this ideal is because moms and dads each bring a different parenting style, Moms are more “verbal” and “nurturing” and men are more playful and “physical”, more likely to roll around wrestling with them, etc.  She also said that adoptive and step parents don’t have the same biological motivation to love, nurture and protect a child that biological ties strengthen.  She claimed that the judges in the other cases misapplied the burden of proof.  She didn’t offer an explanation of that, or at least I didn’t write it in my notes, but from her hammering of the “rational basis” standards, and her repeated insistence that the burden of proof is on the plaintiffs to prove there was not a rational reason for people to vote in favor of the marriage ban, that those are the parts she feels were misapplied.  And, according to her, the plaintiffs can’t PROVE that NONE of the voters had rational reasons for voting in favor of the amendment, they could have voted in favor of the ban to protect families, not to discriminate.  She also pointed out that not since the Proposition 8 trial, has there actually been any trials about marriage bans.  Every decision striking down a marriage ban has been handed down from the bench as a summary judgement.  (She didn’t come out and say it, but I think she was implying that activist judges have been taking the law into their own hands.)  She insisted that if he does rule against the ban, that he grant an immediate stay of his ruling, pending a supreme court decision to settle it.  She said something like, “a stay is needed to maintain the status quo through appeal.”  She ACTUALLY used the term, “status quo”, as the desired result of a stay.  (Unfortunately, I do understand the concern that a bunch of us queers will get married, then, if the appeals court judge grants a stay, there will be a question of whether or not our marriages are legal.  I don’t agree with it, but I understand it.)  She went on to finish by saying that this court cannot intervene unless there is a clear constitutional issue.  I’m not sure if I’m quoting her correctly, but she said something like “If reasonable people can disagree, the court cannot override the vote.”

Once the lawyers had each said their piece, Judge Friedman made his own closing statement.  He began by again praising all sides for their professional and collegial conduct.  He had a grin on his face when he said that when judges sit around and talk about what the “perfect trial” would look like, this is it.  He thanked his staff- each by job title and name, introducing them to the spectators with high praise for each.  Then he thanked the spectators.  He said they don’t get them often, but our constitution talks about having the courts be public and it’s always good to see participation by the public in the court proceedings.  He said the faces in this courtroom have been friendly, and it’s always good to see friendly faces.  He also thanked the media, saying that they are a part of the first amendment, which is all so important.  He pointed out that the constitution, and our whole system in the U.S. Is based upon checks and balances.  He said that the checks and balances included not just three, but five elements:  the legislature, the executive branch of the government, the judicial branch, the press and the public.  They all work together to balance each other out.  (He put it much more beautiful and eloquently than I just did.  I wish I had it on tape, or had written fast enough to write it as a direct quote.)

He went on to say that he has two things to weigh into this decision:  findings of fact, and statutes of law.  Keeping those in mind, he said “I have a lot of reading to do, a lot of decisions to make.”  He said among those decisions are things like how to weight each witness.  He also will listen to all of the court tapes, read all of the briefs, along with each case cited within the briefs and the cases cited in those cases, and on back, eventually leading to the constitution, and he will go directly to the constitution as well, study it to see how it pertains to this case.  He said that to do all of this, it will take a minimum of a week, but more likely two weeks.  He said that he will write it in such a way that anyone can understand it, not just lawyers.  Usually they are written for lawyers, but he wants it accessible to everyone.  

I had so many questions, it was all I could do to not raise my hand and ask, as if I were in a classroom.  When the bailiff said “all rise”, a few people quietly clapped as they stood.  I’m not sure, but I may have been one of them.  I certainly felt like clapping.