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  • Sasha Issenberg

February 25, 2014: Marriage goes on trial in Detroit


Judge Bernard Friedman gaveled in a trial in his federal courtroom over same-sex marriage rights, setting up a showdown over the social-science research on same-sex families.

Friedman, a long-serving judge on the U.S. District Court for Michigan’s Eastern District, had been unusually active in bringing DeBoer v. Snyder to that stage. In 2012, April DeBoer and Jayne Rowse, a pair of emergency-room nurses living together in the Detroit suburbs, had filed suit in Friedman’s court to challenge Michigan’s ban on adoptions by unmarried gays and lesbians. The two women had raised three foster children together, but were unable to draft a will that would assign them equal custody; under state law only one woman could be mother to each child. Friedman guided the plaintiffs to aim their lawsuit instead at what he said was the “underlying issue”: the 2004 constitutional amendment adopted by Michigan voters that forbid two women from marrying. The named defendant in the amended suit, Governor Rick Snyder, moved to dismiss the case, but instead of ruling on that motion, Friedman decided in 2013 to postpone the matter. That month, the U.S. Supreme Court was set to hear two marriage cases, including Hollingsworth v. Perry, a challenge to California’s Proposition 8 which raised the exact same issues as the Michigan case. Friedman wanted to wait to hear what the high court had to say.

The Supreme Court refused to consider the merits of the California case, but the other case it heard that session proved unexpectedly relevant to the Michigan litigation. Windsor v. United States applied directly to just one provision of the Defense of Marriage Act, but the reasoning of Justice Anthony Kennedy’s majority opinion, that the law had been drafted to impose "disadvantage, a separate status, and so a stigma" on same-sex couples could be applied to state marriage bans, as well. On July 1, Friedman rejected Snyder’s motion. “Plaintiffs are prepared to claim Windsor as their own; their briefs sure to be replete with references to the newly enthroned triumvirate of Romer v. Evans, Lawrence v. Texas, and now Windsor,” the judge wrote. “And why shouldn't they? The Supreme Court has just invalidated a federal statute on equal protection grounds because it ‘place[d] same-sex couples in an unstable position of being in a second-tier marriage.’”

Friedman ordered a trial at which the state of Michigan would have to justify a policy that treated opposite-sex and same-sex couples differently. National gay-rights organizations that had previously discouraged DeBoer’s case — including Lambda Legal, the Human Rights Campaign, and the American Civil Liberties Union — suddenly rushed to play a role. The American Foundation for Equal Rights, the well-funded organization that had been founded expressly to challenge Proposition 8 before the Supreme Court, offered what DeBoer’s attorney, Dana Nessel, understood to be a takeover offer: the group would assume the costs of the litigation so its lawyers could take control of the case. “There was going to be a trial, there was going to be a show,” Nessel complained to a reporter from Bloomberg. Instead, Nessel sought out support in her trial preparations from Mary Bonauto, credited for the early success of same-sex marriage cases in New England, in part because her Boston-based public-interest firm Gay and Lesbian Advocates & Defenders had none of its own political interests at stake in Michigan.

The proceeding that Friedman gaveled in would be only the third-ever full trial over same-sex marriage rights, and the final one. It would not deliver “the star power, location, and timing of the trial against California's Proposition 8,” as Buzzfeed noted, but over eight days would reveal a startling imbalance in the quality and quantity of experts and academic research on which the two sides could draw.


The Engagement:
America's Quarter-Century
Struggle Over Same-Sex Marriage

​By Sasha Issenberg

The riveting story of the battles over gay marriage
in the United States – the most important
civil-rights breakthrough of the new millennium.
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