Equal Protection



Judge Bernard Friedman’s decisions guided by that one position.

Jayne Rowse, Judge Bernard Friedman and April DeBoer gather around the marriage license.

Federal District Court Judge Bernard A. Friedman is a quiet, reserved and thoughtful man who shuns public attention and recognition. He is self-deprecating and humble, with a keen and subtle sense of humor.

Thus, it is ironic that this 71-year-old jurist, appointed to the federal bench covering the Eastern District of Michigan by President Reagan in 1988, would become the center of attention and in the national spotlight when he ruled on two extremely divisive and controversial cases that affected — directly and indirectly — the mores, culture and politics of Michigan residents.

One case involved a challenge to the affirmative action program designed to increase diversity at the University of Michigan Law School. In the other case, a lesbian couple sued to overturn Michigan’s ban on same-sex marriage approved by voters in 2004.

The cases ended up before Friedman by chance or, as the court describes it, blind draw. Friedman couldn’t duck, but even if he were able to do so he wouldn’t have because this man loves and respects the law, and thrives on intellectual and legal challenges.

In the affirmative action case, he ruled against the University of Michigan program, issuing what would be described as a conservative opinion. The other was a liberal opinion in which he held that the ban on same-sex marriage approved by Michigan voters was unconstitutional.

Nothing unusual in the opposing political philosophies, he explains, because he decided both cases on the same principle: the 14th Amendment of the U.S. Constitution that provides for “equal protection under the law.”

“Equal protection under the law demands and means equal protection under the law,” Friedman said in an interview. It is really as simple as that.

“Whenever we’ve manipulated the right to equal protection someone gets hurt,” he said. “We simply can’t take away the rights of people.”

This is so basic to him that he seems puzzled that anyone would not understand this constitutional protection designed by the Founding Fathers.

The Right To Marry
Last weekend, Friedman presided over the wedding of April DeBoer and Jayne Rowse, 18 months after his ruling in their case that led to the U.S. Supreme Court’s decision to legalize gay marriage.

DeBoer and Rowse sued the state of Michigan in 2014, charging that the ban on same-sex marriage, although approved by voters, was unconstitutional.

The two plaintiffs had first filed a suit stating that the state violated their rights by not permitting them to adopt each other’s children because they were not married. Friedman said they needed to amend their case to challenge the same-sex marriage ban.

Jayne Rowse and April DeBoer walk down the aisle after the ceremony.

“They amended their suit and the primary issue became whether same-sex marriage had a detrimental effect on their children,” he said. “The plaintiffs brought in several expert witnesses who testified that same-sex marriages do not have different results on the outcome of children living in same-sex marriage relationships. The state did nothing to disprove these witnesses.

“Again, it came down to equal protection under the law,” Friedman said.

In his decision, he concluded: “Today’s decision … affirms the enduring principle that regardless of whoever finds favor in the eyes of the most recent majority, the guarantee of equal protection must prevail.”

Friedman’s ruling was one of four that reached the U.S. Supreme Court simultaneously and led to the high court’s decision in June legalizing same-sex marriages throughout the country.

Given its liberal politics, the Jewish community, he said, was much more supportive of his same-sex marriage decision than his ruling on affirmative action.

Affirmative Action
In Grutter v. Bollinger in 2001, Friedman said that while he supported the concept of diversity in education, he found U-M’s efforts unconstitutional.

In his ruling, Friedman said the U-M policy over-emphasized race.

“The evidence shows that race is not, as defendants have argued, merely one factor in the admissions process,” he wrote.

Friedman also argued that the law school’s use of racial criteria was “indistinguishable from a straight quota system.”

He said experts testified that admission tests are designed to discriminate and that he was sensitive to the testimony because many of the nation’s universities had years earlier systematically discriminated against Jews. “The admissions tests were designed so that Jewish students would fail,” Friedman said.

He agreed with U-M that argued diversity “adds to the education experience,” but added, the university had at its disposal many other means to achieve its diversity objectives.

Judge Friedman

He acknowledged that his decision did not engender the kind of support in the Jewish community that he had hoped for, especially given that Jews were the victims of discrimination at universities not too long ago. He said he expected them to be more sensitive to decisions made by universities based heavily on racial considerations.

The case made it to the U.S. Supreme Court where, in 2003, Friedman was overruled. However, the court, in a 5-4 decision, did not disagree with Friedman on his conclusion that equal protection under the law was being violated, but ruled that U-M, to make up for past discrimination, could continue the use of affirmative action for 25 years when, the court said, it might no longer be needed. But three years later, in 2006, Michigan voters approved a constitutional amendment to ban the use of affirmative action. A legal challenge to the ban again made it to the Supreme Court, which, last year, upheld the voters’ decision.

Life On The Bench
Both cases brought an avalanche of reaction, with hundreds of letters landing in his office.

Asked about this, Friedman simply shrugged, implying it goes with the territory.

Now in his 28th year on the federal bench — he served as chief judge from 2004-09 — Friedman has been recognized for his work on the bench by several legal organizations, including being named one of the 25 most respected judges by Lawyers Weekly.

His eminence as a legal scholar is particularly noteworthy because he suffers from dyslexia and “other issues” that made him a terrible student.

Given his poor high school record, he was not accepted by any university. By chance, he stopped by the former Detroit College of Law (which affiliated with Michigan State University in 1995) and discovered it was relatively easy to apply.

He filled out a very short application, was admitted even though he had not earned an undergraduate degree, and probably is the only judge to sit at a federal level who never earned an undergraduate degree.

He did a stint in the Army Reserves, first as an enlisted man, but took officer training classes and was promoted to second lieutenant. After he was discharged from the Army, he passed the Michigan bar examination and was appointed an assistant prosecutor in the Wayne County Prosecutor’s office. There he met Robert S. Harrison and Dalton Roberson, with whom he would form a private law firm. While he enjoyed the law, his goal was to become a judge.

He was appointed to the 48th District Court by former Gov. William G. Milliken. Friedman served there for six years before being appointed to the federal bench by Reagan.

Friedman and his wife, Rozanne, a psychologist, have two children and five grandchildren.

So, given that he is 71, when will he hang up his black robe?

“No plans,” he said, “Every day is different, and I enjoy it immensely. I’m going to keep going.”

Would he want another case with the public pressure and spotlight of an affirmative action or same-sex marriage case?

With the appropriate temperament of a judge, he didn’t answer. He smiled and indicated that he is prepared to deal with whatever the blind draw brings to his bench. 

By Berl Falbaum, Special to the Jewish News. Photography by Jerry Zolynsky.

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