Michigan’s Same-Sex Marriage Ban Takes Two Legal Hits Based On DOMA Ruling

The future legal impact of the Supreme Court's ruling striking down the Defense of Marriage was on full display in two cases out of Michigan.


In the wake of the Supreme Court’s ruling on the Defense of Marriage Act, there have been two very interesting legal developments out of Michigan that serve, I would think, as an example, of what this ruling is likely to mean for cases going forward. First, a Michigan Federal Court Judge has ruled in favor of the Plaintiffs in a case challenging a law that they say discriminates against same-sex couples due to the state’s ban on same sex marriage. SCOTUSBlog’s Marty Lederman explains:

In granting a preliminary injunction to the plaintiffs, the judge concluded that the plaintiffs are likely to prevail on their claim that the statutory provision, Public Act 297, in effect establishes a form of discrimination on the basis of sexual orientation, when read in conjunction with the Michigan constitutional provision making same-sex couples ineligible to marry:

“Although the act does not use the term ‘sexual orientation,'” he wrote, “it both explicitly incorporates statutes that draw classifications based on sexual orientation and renders access to benefits legally impossible only for gay and lesbian couples.  The Act incorporates the definitions in the Michigan marriage amendment and the intestacy statute. Both of those laws distinguish between opposite-sex couples, who are permitted to marry and can inherit under intestacy, and same-sex couples, who cannot.”  [The Michigan intestacy statute does not by terms discriminate on the basis of sexual orientation; but it, too, is dependent upon the state constitutional marriage restriction, because it allows inheritance only by spouses, descendants, and paternal and maternal relatives.]

Michigan law as a whole, in other words, “permit[s] benefits to be extended only to married couples while barring same-sex couples from marrying.”


Then, relying upon the Supreme Court’s brand-new decision in United States v. Windsor, the district court found that the plaintiffs were likely to prevail under rational-basis review for another reason, as well — namely, that they would be able to demonstrate that enactment of the 2011 law was motivated by animus or ill will against gays and lesbians.  Prior to 2011, several Michigan counties, cities, and school districts — including those in which the plaintiff-employees work — had voluntarily extended benefits to certain live-in, domestic partners of employees (deemed “Otherwise Qualified Adults,” or OQAs), whether those OQAs were of the same or the opposite sex of the employees.  The 2011 law was a reaction to this local practice:  It was designed to prevent such local government entities from continuing to give benefits to such partners.  According to the district court, however, the plaintiffs will likely be able to prove that the target of the legislation was not domestic partners writ large, but gay and lesbian partners, in particular:  “Looking to the history and text of Public Act 297,” he wrote, “it is hard to argue with a straight face that the primary purpose—indeed, perhaps the sole purpose—of the statute is other than to deny health benefits to the same-sex partners of public employees.  But that ‘can never be a legitimate governmental purpose'” (quoting the Sixth Circuit decision in Davis v. Prison Health Services).  [The full quotation from the Davisopinion is this:  “[T]he desire to effectuate one’s animus against homosexuals can never be a legitimate governmental purpose, [and] a state action based on that animus alone violates the Equal Protection Clause.”  Presumably one major issue at trial and on appeal will be whether the 2011 Michigan enactment is governed by Davis, and by Windsor.]

While this wasn’t a same-sex marriage case per se, the Judge’s decision here is about as direct attack on Michigan’s law barring same-sex marriage as there could be until, well, just a few days later when another Federal Court Judge in Michigan ruled that a lawsuit challenging Michigan’s law forbidding same-sex marriage can go forward, in part citing the Supreme Court’s decision overruling the Defense of Marriage in support of his argument:

DETROIT — A judge signaled Monday that a trial is possible to determine whether Michigan’s ban on gay marriage is constitutional, nearly nine years after voters approved it by a wide margin.

U.S. District Judge Bernard Friedman refused to dismiss a lawsuit filed by nurses Jayne Rowse and April DeBoer, who are challenging a law that bars them from adopting each other’s children as well as a 2004 constitutional amendment that defines marriage only as between a man and a woman.

Friedman said the Detroit-area women, along with state of Michigan attorneys who are defending the laws, probably found something to like last week in a major U.S. Supreme Court decision, which could influence the outcome of the case.

The court struck down a portion of a federal law barring government benefits to same-sex couples who are allowed to legally marry in their respective states. But the justices also said states have the power to define marriage.

“This court cannot say that plaintiffs’ claims for relief are without plausibility,” Friedman said of Rowse and DeBoer. “Plaintiffs are entitled to their day in court and they shall have it.”

The relevant portions of Judge Friedman’s opinion are worth quoting:

Plaintiffs’ equal protection claim has sufficient merit to proceed. The United States Supreme Court’s recent decision in United States v. Windsor, No. 12-307 (U.S. Jun. 26, 2013),has provided the requisite precedential fodder for both parties to this litigation. Defendants will no doubt cite to the relevant paragraphs of the majority opinion espousing the state’s “historic and essential authority to define the marital relation.” Id. slip op. at 18. They will couch the popular referendum that resulted in the passage of the MMA as “a proper exercise of [the state’s]sovereign authority within our federal system, all in the way that the Framers of the Constitution intended.” Id. slip op. at 19. After all, what could more accurately embody “[t]he dynamics of state government in the federal system. . . to allow the formation of consensus respecting the way the members of a discrete community treat each other in their daily contact and constant interaction with each other,” id., than a legitimate vote of the people of the State of Michigan to preserve their chosen definition of marriage in the fabric of the state constitution.

On the other hand, 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, 517 U.S. 620(1996), Lawrence v. Texas, 539 U.S. 558 (2003) and now Windsor. 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.” Id. slip op. at 23. Moreover, and of particular importance to this case, the justices expressed concern that the natural consequence of such discriminatory legislation would not only lead to the relegation of same-sex relationships to a form of second-tier status, but impair the rights of “tens of thousands of children now being raised by same-sex couples” as well. Id. This is exactly thet type of harm plaintiffs seek to remedy in this case.

Construing the facts in the light most favorable to plaintiffs, and in view of the Supreme Court’s current statement of the law, this Court cannot say that plaintiffs’ claims for relief are without plausibility.Plaintiffs are entitled to their day in court and they shall have it.

It’s worth noting that neither party could have noted either Windsor or Perry, in either their briefs or their oral arguments on this Motion to Dismiss since they had already submitted the same to the Court at some point before hand. This was something the Judge came up with on his own in light of the Supreme Court’s ruling last Wednesday. In future cases of this type, of course, attorney for both sides will be eagerly making their arguments based on those cases in order to persuade the Court to decide in their favor, although in the end it seems that at least Windsor is clearly a case that favors those who would challenge state-based laws against same-sex marriage.

It’s worth noting, of course, that this is only the first legal hurdle that the Plaintiffs in this case will have to overcome. They will likely have to get past a summary judgment and/or trial phase at the District Court and then, of course, the inevitable appeals. However, this is still a pretty significant victory and, most likely, the first of many that the Court’s rulings last week are going to inspire.

The legal issues at issue in these two cases are different, and they are both at different stages in the legal process. Nonetheless, they both show us the impact that Windosor is likely to have on the legal battle over marriage equality.Whether Justice Kennedy intended it or not, and I doubt that he could have been unaware of the possible future application of what he was writing, the Supreme Court’s decision in that case, along with Judge Vaughn Walkers August 2011 decision in Perry v. Schwarzenegger striking down Proposition 8, are going to reverberate across the country for years to come.
Here is Judge Lawson’s opinion:

Bassett et al v. Snyder by dmataconis

And, here’s Judge Friedman’s opinion:

DeBoer v Snyder Order Denying Motion To Dismiss by dmataconis

FILED UNDER: Law and the Courts, US Politics, , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. Gromitt Gunn says:

    One area that I have been wondering about re: possible areas for future litigation is eligibility for federally-mandated programs that are administered by the states, such as Medicaid and TANF, where marital status / household size are one of the metrics for qualification. I don’t know enough about how much leeway states have in determining who qualifies, but it seems like it could be an area of contention post Windsor.

  2. stonetools says:

    Its clear that Kennedy’s holding gives SSM advocates a road map for filing lawsuits arguing that anti-SSM laws are unconstitutional on Equal Protection grounds. The state sovereignty defense is going to run smack into Loving v. Virginia, which says that EP trumps state sovereignty in the marriage area.

    Prediction:Anti-SSM laws will only be overturned by court decision in the hard core Red states. I actually think that a state such as Michigan, the correct path for SSM advocates might be political action, since the Democrats might regain the majority there soon. But I’m sure that they’ll take victory by court decision, too.

  3. Sam Malone says:
  4. Snarky Bastard says:

    @Gromitt Gunn: In most cases, there won’t be challenges on eligibility grounds as two individual’s eligibilities tend to lead to an equal or higher sum total than a single married couple’s eligibity.

    Bigot States could decide to argue that the Feds require them to treat couples as married for federally funded programs and thus classify couples as married in an attempt to save a few cents, but then argue that Windsor allows the state to define marriage locally for state tax purposes… Bit of a legal tap dance there I would imagine.

  5. Scott says:

    I think the meltdown will come when married gay active duty and retired veterans run smack into state and local veterans benefits programs. They will be legally married in one state, maintained residency in those states until retirement but then retire in a state where their marriage is considered invalid. Then the states will have to decide: do they support traditional marriage or do they support the veteran.

  6. Tyrell says:

    @Snarky Bastard: And just which are these so-called “bigot”

  7. Barry says:

    @stonetools: “I actually think that a state such as Michigan, the correct path for SSM advocates might be political action, since the Democrats might regain the majority there soon. But I’m sure that they’ll take victory by court decision, too. ”

    Nah, we’ll take what we can get. I’ll believe in the ‘backlash’ theory the minute that the right does.

  8. Gromitt Gunn says:

    @Snarky Bastard: In most cases, there won’t be challenges on eligibility grounds as two individual’s eligibilities tend to lead to an equal or higher sum total than a single married couple’s eligibity.

    In general, I would agree. However, in large scale civil rights movements, there’s a history of selected individuals taking one for the team in order to advance the cause.

  9. NickTamere says:

    @Tyrell: Those that a) do not extend the same protections and laws to gay individuals and couples as they do to straight ones, and b) are working on limiting or removing the existing protections and laws they do have.

  10. Snarky Bastard says:

    @Tyrell: Bigot states = states that are maintaining as public policy animus towards weak and small groups

  11. Tyrell says:

    @Snarky Bastard: Would that be any state that has laws against polygamy?