Historic Ruling

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ruling-coverA happy family: Lisa Bargende Sollish, Remy, Harper and Elizabeth Sollish.

It was a weekend mixed with celebration, disappointment and uncertainty for hundreds of couples and supporters of same-sex marriage in Michigan, as Federal Judge Bernard Friedman issued a momentous decision that legalizes marriage between two members of the same sex.
Local same-sex marriage decision results in celebration and ambiguity.

Friedman’s opinion was made public on Friday afternoon, March 22, and the following day, clerks in four Michigan counties held Saturday hours so more than 300 couples could experience a long-awaited wedding day. By that evening, the U.S Court of Appeals for the sixth Circuit issued a “stay” in response to an emergency motion filed by Michigan Attorney General Bill Schuette, putting Friedman’s judgment on hold until the matter is considered by the appeals court.

Judge Friedman
Judge Friedman

For Elizabeth Sollish and Lisa Bargende Sollish, who are raising two daughters in their Huntington Woods home, a marriage ceremony was the culmination of their 21-year partnership. After standing in line to get a license from Oakland County Clerk Lisa Brown, the couple was married by Berkley District Court Judge James (Jamie) Wittenberg at the home of mutual friends.

Because of time constraints, they could not return to the clerk’s office for their marriage certificate, which serves as an official record of the marriage.

“It was a little disappointing, but still a great, meaningful day,” Elizabeth said.

It was also an emotional day for Oakland County Clerk Lisa Brown, who was a co-defendant in the lawsuit because her office could not issue marriage licenses to same-sex couples. During the trial, Brown made it clear she believed prohibiting same-sex marriage was a discriminatory practice and said she was ready to issue licenses to same-sex couples as soon as the court deemed it legal. On Saturday, March 22, she and her staff provided 142 marriage licenses, and Brown personally performed more than 80 ceremonies. Additional weddings took place elsewhere in the county building and on the outside grounds.

“It was incredible,” Brown said, “seeing so many people so deeply in love, including some who have been together for 30 years or more. It was an honor to be part of it.”

Wittenberg, who was called by his friend, plaintiffs’ attorney Dana Nessel, to lend his services, performed five marriage ceremonies, including the one for Elizabeth and Lisa Bargende Sollish.

Judge Wittenberg
Judge Wittenberg

“The lines at the clerk’s office were out the door,” he said. “There were a lot of families, and the courthouse was buzzing. People were very happy.”

In his opinion, Friedman stated the 2004 Michigan Marriage Amendment (MMA) was unconstitutional because it violated the Equal Protection Clause of the 14th Amendment. His decision came two weeks after the end of a multifaceted trial that ended March 7 in U.S. District Court, where expert witnesses from the fields of social science, law, economics and psychology testified about whether children raised in same-sex households had different outcomes than those raised by heterosexual couples.

Friedman concurred with the evidence presented by the plaintiffs, which concluded that the sexual orientation of the parents did not affect the children’s social or academic success.

“It was the best possible opinion, eloquent and so well-stated,” said Nessel, who brought her children to the Oakland County Clerk’s Office to see the results of her team’s legal victory firsthand. “To watch these couples made the fruits of all our labor even more overwhelming.”

LANDMARK CASE

The case, DeBoer v. Snyder, originated as an adoption dispute between the State of Michigan and two Hazel Park nurses, Jayne Rowse and April DeBoer. The women wanted the right to jointly adopt the three special needs foster children they are raising together.

Lisa Brown
Lisa Brown

Rowse is the legal adoptive parent of two of the children, and DeBoer has adopted the third. The women filed their lawsuit after becoming concerned about what might happen if one of them should die or become incapacitated because a non-legal parent has no official standing or parental rights.

While the couple had been approved by the state to serve as joint foster parents to all three children, current Michigan law does not allow unmarried couples to adopt jointly, regardless of gender.

After a hearing last October, Friedman decided to expand the case to include the state’s same-sex marriage prohibition and ordered a bench trial, which began Feb. 25 and lasted two weeks.

One of the major issues raised during the trial was the detrimental impact on children whose parents cannot be legally married. Because the relationship with the non-legal parent is so ambiguous, one expert witness said the children often become insecure, questioning whether that person will remain in their lives if there is a death or breakup, unlike children whose parents are married.

The parental rights of the non-legal adult are also at risk, according to University of Michigan law professor and child welfare advocate Vivek Sankaran, who testified for the plaintiffs. He explained that, despite popular belief, appointing the non-legal parent as guardian in the event of the legal parent’s death does not guarantee those wishes will be carried out.

Such designations are subject to court approval, and other interested parties, such as family members, can come forward and petition for custody, even if those relatives had no prior relationship with the child.

“Guardianships were never intended to be permanent,” he said. “The kids could be placed back in foster care.”

Elizabeth Sollish said she has similar fears about her future relationship with their children, Harper, 9, and Remy, 7½, in the event of a tragedy, because her partner, Lisa, is their birth mother and legal parent.

“We’ve drawn up several legal documents, but not all of the courts will follow those,” said Elizabeth, adding that one reason the couple wanted to get married was so that she can legally adopt both of the girls.

Dana Nessel
Dana Nessel

At press time, a hearing was scheduled for Wednesday, March 26, to determine whether the 6th Circuit Court of Appeals will continue the stay. Nessel, whose legal team included Carole Stanyar and Ken Mogill, said she hopes the court will remove the stay so that same-sex couples can continue to get married while the case is being appealed by the attorney general. It is estimated that an appeal can take up to eight months.

“This was not a close call,” she said. “Every argument [by the State] was tested and failed miserably.”

Nessel added that this issue is appropriate for the upcoming Passover season, when we contemplate the themes of human dignity and freedom.

“I hope the court will consider the harm that will be done if the stay is enforced; every day is another day these couples are vulnerable, living with terrible uncertainty,” Nessel said.

Brown also expressed disappointment over being unable to serve the many same-sex couples still hoping to make their unions legal.

“It felt good not to have to discriminate in my office, and now I’m back to having to do that again,” she said.

Elizabeth Sollish said her family has always felt accepted by the Jewish community, including Hillel Day School and Tamarack Camps, which Harper and Remy attend. Now she and Lisa wish their government would follow suit.

“Most importantly,” Elizabeth said, “what we’re looking for is to be recognized as a family and have the benefits that go along with that.” ■

Ronelle Grier | Contributing Writer

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