Today I went along with the Hanover-Horton High School Gay-Straight Alliance to view the historic trial going on in the federal court in Detroit that will potentially overturn Michigan's constitutional amendment that bans same-sex marriage. The GSA group walked proudly and peacefully past the protestors for "traditional marriage" outside as we came into the federal court building. Judge Friedman greeted us warmly as we came into the courtroom, asking if we were the high school group that he had heard was coming, giving the group president a moment to introduce the group, and saying he would stay around afterward to share some information about how the courts work and answer any questions excepting that he could not answer questions pertaining to the case.
Today in DeBoer vs. Snyder there was one witness on the stand. DeBoer's team called their Harvard's Jonathan Trumbull Professor of American History, Dr. Nancy Cott. In addition to being a professor of history at Harvard, Cott was an expert witness for the federal case Perry v. Schwarzenegger against Proposition 8 in California, and is the author of the book Public Vows: A History of Marriage and the Nation.
Hearing Professor Cott was like getting to go to a Harvard lecture on the subject. She deftly covered the history of marriage and explained that those who would uphold "traditional marriage" are aiming at a target that's always been moving. She explained three main ways in which marriage has changed in the course of American history: asymmetrical (gender) roles, divorce, and race, and explained how each was relevant. To Michigan's credit, she noted, we were one of the first to, early on, get rid of laws banning interracial marriage (which she made a point of showing were always about whiteness, and never about two other races marrying). An interesting example of women's roles in marriage changing that she gave was that earlier in history women who married men from other countries automatically lost their American citizenship, because their identity was assumed to be subsumed under their husband's. She described how marriage in America has been increasingly moving in a direction of equality and openness. She cleanly swept aside religious concerns explaining that in America marriage had been a civil institution from the beginning, citing a statement by William Bradford defining marriage as a civil institution in America and a critical distinction from England. She explained that clergy performing legal ceremonies are doing so because the state has entrusted to them and loaned to them its power. And she clarified that clergy could impose additional restrictions on marriage to what the state imposes, such as a Catholic priest requiring people to be Catholic or not divorced, but that those additional restrictions did not, in turn, affect the state's qualifications for marriage. As a Massachusetts resident, she said that same-sex marriage had had no discernible negative impact on heterosexual marriage, and that, to the contrary, there were younger people who had been uncomfortable with the institution because it was discriminatory who now felt more comfortable with the institution. Overall, she nicely laid out that the arc of our nation's history bends towards marriage equality.
The state in their questioning of Professor Cott, the state looked foolish and awkward to this decidedly biased viewer. The lawyer for the state began by stating that she was going to be asking yes-or-no questions and asked Professor Cott to restrict her answers to yes or no. Judge Friedman told Cott that she could also state if her answer could not be restricted to yes or no, and so Cott managed to give a more nuanced answer to almost every question. It was clear from the questions that the state's case will rely on the importance of binary gender, on the importance of the state upholding a model of biological mother and father as ideal in childrearing, and the idea that the state has an interest in procreation. The state's lawyer tried to pin her down on the idea of gender being binary as important to the state's interests, and Cott responded that so far gender had been understood as binary, but that was changing as we understood and included transgender as a category. They managed to pin Cott down as saying that the state did have an interest in procreation, but then Cott was able to explain that as she had thought about it further, she would have to qualify it, because that was such a vague statement. She explained that the state had an interest in procreation occurring, because we need people, but that as to whether or not marriages were procreative ones or not, the state had never expressed an interest, such as in limiting marriage to those within ages where procreation is possible. The one point at which I think she floundered a bit was in making the case for why we shouldn't also allow polygamy, which the state's lawyer defined as something that "fundamentalist Mormons" believe in. Cott chose to address this by denying that any religious group existed that believed in polygamy, and that, rather, those Mormons who did believe in it were not only doing something illegal but something that went against their religion. I think this was a weak argument for why same-sex marriage is different than polygamy, and a narrow understanding of Mormonism as monolithic and not viewing fundamentalist offshoots as valid religious organizations.
The one awkward moment for DeBoer's attorney this morning
came when he compared Michigan's case to the other states where Federal
judges have overturned same-sex marriage bans. Judge Friedman quickly
pointed out that those had been summary decisions, not full trials like
this one. The lawyer quickly regrouped and said not that those were
pointing for how this should be decided but rather that when the lawyer
found in DeBoer's favor, as he surely must, that the Michigan decision
would show that those decisions had been correct and uphold them
As the court day concluded, Judge Friedman asked the state's attorneys how long each of their witnesses was likely to take, so that they could all have a sense of the timeline for the case. It sounds like there will be another three days, roughly, of testimony as the state now brings their witnesses.
Afterwards, Judge Friedman did indeed come talk with our GSA group. He seemed quite delighted in having us there, and introduced us to various people, including Judith Ellen Levy who has been nominated as a U.S. District Judge by President Obama and is currently the Civil Rights Chief of the US Attorney's Office in Eastern Michigan. Levy is an openly gay attorney and was very friendly to the GSA and told them what the state of gay rights was like when she was in college and what her own marriage ceremony was like (in DC, if I recall correctly) -- her family sat in the jury box and gave her a "life sentence." It was great for the GSA to get to meet this great role model in the legal and judicial field. After that, Judge Friedman returned and told us about how the district court works, explaining with great enthusiasm the different types of cases and giving examples of a drug case and a case against Winnebago that he had judged, since he happened to have their displays hanging around and could use them as examples. He steered clear of talking about the DeBoer vs. Snyder case except to say that he had left time after the case before his next case, as he intended to issue the decision right away since it was such an important case, and that there had already been groups, such as the county clerks association, asking for a stay, and it was common in cases like this one. He didn't outright say that a stay would be issued immediately, but it certainly sounded likely.
After today, my hopes are even higher than ever that equality will prevail soon in Michigan. And when we do, we'll be the first state to have struck down a same-sex marriage ban with a full trial, making our stand even stronger. I'm thankful the GSA invited me to attend with them today, and glad I did. It was an uplifting day, full of hope and possibility.