'You Can't Win A Case That You Never File'

BY AJ TRAGER

DETROIT - In 2011, when April DeBoer and Jayne Rowse approached Dana Nessel for legal counsel they primarily sought to change Michigan's adoption code, one of the most restrictive in the country as it pertains to same-sex couples and their ability to adopt children.

In Michigan the applicant seeking to adopt must be either a single person or a couple that is legally married. According to the Williams Institute, almost 20 percent of all same-sex couples in the U.S. are raising children under the age of 18, totaling 220,000 youth nationwide. Many LGBT couples in Michigan who decided to adopt have only one parent listed as the legal guardian. The other is a complete legal stranger to their own child. In contrast, Michigan's foster care system allows LGBT couples to foster children, with both parents maintaining legal status over the youth.

By the time DeBoer and Rowse had reached out to Nessel for help, the Michigan Marriage Amendment had been in place for seven years. It was voted into law in 2004 after a voter-approved initiative. Ten other similar initiatives were also approved throughout the country in concert with the 2004 presidential election. The change in state law reads: "To secure and preserve the benefits of marriage for our society and for our future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose."

Adoption

Nessel's first dip into challenging the Michigan Custody Act (MCA) was representing Renee Harmon in 2011, a lesbian seeking to be recognized as the mother of the children Harmon and her former partner had raised for 19 years. Tammy Davis was the birth mother of their children and following a relationship split was able to legally refuse Harmon rights to see the children. Nessel won the case but lost on appeal in the Michigan Supreme Court, where the ruling fell along partisan lines. The court determined Harmon had no legal rights to their children.

Nessel met DeBoer and Rowse later that year. The Hazel Park couple had at that time been together for 11 years and are jointly-certified foster parents. Rowse is an ER nurse and DeBoer works as a neonatal intensive care nurse. Between the two of them, they (now) have five children.

"DeBoer v. Snyder is by far the most interesting case that I have ever had the chance to work on," Nessel said.

"The Department of Human Services just keeps calling them up and asking if they will take more children, knowing that they have these special skills. They are nurses and their job all day, every day, is to take care of the sick. Knowing this, they (DHS) are constantly calling up saying, 'We don't have anyone to take care of these needy children who nobody else can take care of -- will you?' And they have a hard time refusing a child in need and that is why they will have five children, aged 6 and under, by the end of this year. Some people would call that masochism, but I just call them loving people," Nessel said.

DeBoer and Rowse were forced to independently adopt each of the children, despite the fact that they are a committed couple, because of Michigan's adoption laws. Due to the state's custody act and the anti-gay marriage amendment, there is no mechanism for both moms to share parental rights of the children they are raising.

Nessel filed the initial complaint in early 2012, suing the attorney general and governor of Michigan, challenging the Michigan Adoption Code with the claim that it violates the equal protection clause of the 14th Amendment. The state constitution reads: "No state shall deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the law."

A motion for summary judgment was held in August 2012 when Judge Bernard Friedman, a Reagan appointee, indicated that the proper argument to be made wasn't arguing against the adoption code; the problem was with the MMA, redefining marriage as "a one man and one woman" union. Friedman then gave both legal teams 10 days to construct their next arguments and refile.

"There are so many people that are injured so badly as a result of these types of laws. But you can never point to a single person who was helped by these laws," Nessel said, referring to the MMA. "There are so many lawsuits, but there are no gains by anyone. And if that isn't true discrimination, then I don't know what is. So we proceeded on that basis."

Marriage Movement

By this time, SCOTUS accepted petitions on Proposition 8 in California and Windsor v. United States in 2013, and a stay was placed on DeBoer v. Snyder awaiting the court's decision.

Cross motions of summary judgement were held Oct. 16, 2013 in Federal District Court in Detroit. It was the first case of its kind heard before the courts after the Windsor decision.

The state's arguments included majority rules; the MMA protects couples that procreate biologically; discussion on tradition and marriage; and that "heterosexuals make better parents."

Nessel and her team argued that the rules put in place by the majority infringed upon the constitutional rights of minorities and that tradition and being heterosexual don't equate to better parenting.

Judge Friedman found an issue of "fact" existed. Both parties were arguing on the validity of tradition and heterosexuality playing a role in the success of parenting and Friedman determined the case would go to trial, set for Feb. 25, 2014. Nessel, Carole Stanyar and Ken Mogill had four months to prepare for what would turn out to be an eight day trial focusing on marital tradition and an in-depth look into the parenting capabilities of LGBT people and same-sex couples.

The Trial

Four months later, Nessel and her team presented witness testimony from: experts on child welfare, sociologists, psychologists, an attorney/law professor, an expert on LGBT demography, a expert on tradition of marriage, an expert on history of discrimination against LGBT people in the U.S. and "defendant" Lisa Brown, newly elected Oakland County Clerk who self-identified as a hostile witness for the state.

DeBoer and Rowse did not take the stand because the state decided it would not contest their parenting skills and "stipulated the fact that they were marvelous parents who do a wonderful job raising their children," Nessel said.

The defense presented many witnesses, some from out of the state, including testimony from Mark Regnerus, a discredited sociology professor, whose research on the impact of same-sex parenting on children was delivered in court but later thrown out for the lack of validity, including a disavowal by the department chair where Regnerus' worked and has tenure.

Friedman issued his ruling March 21, 2014, indicating that the MMA and all of its implementing statues were unconstitutional because they violated the Equal Protection Clause of the 14th Amendment of the U.S. Constitution.

The next day, clerks -- all Democrats -- from four counties began issuing same-sex marriage licenses. Three-hundred and twenty three same-sex couples were married and in less than 24 hours the 6th Circuit stayed the decision pending appeal. The 6th Circuit decided to hold a hearing over same-sex marriage, consolidating six cases from Michigan, Ohio, Kentucky and Tennessee which all fall under the 6th Circuit jurisdiction. The cases were presented before three judges of the 6th Circuit Court on Aug. 6, 2014 in Cincinnati, Ohio.

Marriage Grows

"In the meantime, monumental events occurred in the U.S.: four U.S. Circuit Courts that ruled on this, all of which upheld their district courts in striking down bans on same-sex marriage just as Judge Friedman had done," Nessel explained. "Then not only did all of these circuits strike down their respective bans in their circuits, but when (state) applications were made for certiorari or petitions to have their cases heard before the Supreme Court, SCOTUS did what we all thought was really unthinkable -- they turned them all down."

In one fell swoop, marriage equality became legal in 36 states. One by one over the course of the summer of 2014, district, circuit and local courts ruled in favor of marriage equality.

6th Circuit Court

It wasn't until the 6th Circuit Court of Appeals ruled against marriage equality on Nov. 6, 2014, that the high court had reason to consider the constitutionality of marriage bans. Petitions were filed to SCOTUS on behalf of the plaintiffs in Michigan, Ohio, Kentucky and Tennessee.

On Jan. 16 SCOTUS announced that it would hear oral arguments on whether state bans on same-sex marriage were unconstitutional, consolidating the two major questions posed before the 6th Circuit: does equal protection require a state to issue same-sex marriage licenses and does equal protection require a state to recognize a same-sex marriage performed out-of-state?

In the following months, Nessel and the legal teams partnered with attorney Mary Bonauto, a longtime civil rights and LGBT advocate and defender most known for her lead counsel in Goodridge v. Department of Public Health, which made Massachusetts the first state with legal same-sex marriage. Her co-counsel contributions in Baker v. State of Vermont, which led to the nation's first civil union law in 1999, are also notable.

SCOTUS heard oral arguments on April 28. With two questions posed before the court, SCOTUS split the time. Bonauto presented the case before the high court for the first question and attorney Douglas Hallward-Driemeier argued for the second question.

"Whatever your plan is in life, don't think that you can't make a difference because you can. And that goes for everyone, and it goes for anything," Nessel said. "If you see something out there that you think is unjust, don't think you can't work hard, and that your hard work can't pay off to right wrong in our communities, in our state and across our country -- because you can. There were a lot of people who said, 'Don't bring this case because you will lose.' And I said, 'Well, if we lose, then we are right back to where we are right now. If we have no rights for LGBT people in this state, we can't have negative rights. We are at zero, so what is worse than zero?'"

"So as my old law professor said to me: 'You can't win a case that you never file.' I look back at that Harmon case; I said, 'I'll give it a shot, the worst I can do it try and get your kids back.' Had we not lost Harmon v. Davis, we would not have won DeBoer v. Snyder.

Nessel received her law degree from Wayne State School of Law. She has been in practice for 18 years and got her start as an assistant prosecutor for Wayne County representing the county and state in child and physical sexual abuse cases. Nessel started her own private practice in 2005 and is now one of the top criminal defense attorneys in the state and continues to represent civil rights cases and family law cases.
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