On Wednesday, I was really hoping that my birthday present would be a ruling from a federal court in Detroit striking down Michigan’s law banning same-sex marriage. But the judge decided not to rule on the cross motions for summary judgment and to set a schedule for trial instead. The trial will begin on Feb. 25.
Both sides had made motions for summary judgment in their favor and many expected the judge to rule on them immediately. My friend Dan Ray, a constitutional law professor who filed a brief in the case, explained on his Facebook page what happened and why:
What the Court told the parties is that the Court thinks there are issues of fact that need to be resolved. I’m getting reports trickling in as to what, exactly, the Judge said, and we’ll need to withhold definite conclusions until we have accurate information. But I’m told that the Judge sees factual issues in whether Michigan has sufficient interests to justify, constitutionally, the Michigan Marriage Amendment. The State has relied quite heavily on bogus studies allegedly showing that children raised by gays and lesbians have less favorable outcomes than children raised in heterosexual families. The studies aren’t credible, and for someone who knows what s/he is doing, they’re fairly easy to take apart. But my suspicion is that that’s where the Court is looking for factual development. If justifications like that fail, Michigan really has nothing else to hang its hat on, constitutionally speaking. The Amendment will fail on rational basis grounds.
I know lots of people are very disappointed, and I understand that. I am, too. But in the spirit of “let’s see the silver lining here,” there is merit to what the Court has done. This case is going up to the 6th Circuit no matter the outcome at the District Court level. The Court wants to make a solid record to support its actions, so that there’s a better chance of the decision surviving appellate review. In short, making a good factual record at this point helps to assure that the decision will be upheld on appeal. From a judicial – procedural – standpoint, this makes sense.
A very good point. I imagine a key issue at trial will be the validity of the Regnerus study on gay parenting, which the state cited in their briefs repeatedly. I expect there will be experts offered on both sides to testify as to whether the study supports the state’s position or not. It will certainly be fascinating to watch.
Dan also notes that the attorneys in this case are doing it pro bono and the case just got a whole lot more expensive. If you’d like to contribute to the legal defense fund, click here.