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Why delaying the gay marriage decision is a good thing

There were a lot of disappointed people yesterday afternoon. They’d expected U.S. District Judge Bernard Friedman to strike down the Michigan constitutional amendment outlawing same-sex marriage. They also thought he’d rule against Michigan’s decision to forbid unmarried couples from adopting children.

But the federal judge did neither thing -- although he hinted that he wanted to. Instead, he said the case before him would have to go to trial. “I wish I could sit here today and give you a definitive ruling,” Friedman said, adding, “There are issues that have to be decided. I have to decide this as a matter of law.”

With that, he set a February 25th trial date in the case of two lesbian nurses who want to jointly adopt three small children they have raised since they were desperately ill foster infants.

The nurses, April DeBoer and Jayne Rowse, are a committed couple who have been forced to adopt the children separately. Michigan does allow single people to adopt children, as well as married couples, but not an unmarried couple of any sex.

When the nurses originally challenged this, the judge invited their lawyer to also challenge the state’s gay marriage ban. Nine years ago, Michigan voters approved a state constitutional amendment saying marriage could only be between one man and one woman. Yet attitudes have shifted dramatically.

When the judge declined to toss out Michigan’s gay marriage ban, there were tears of sorrow and anger.

County clerks in some places were prepared to issue marriage licenses immediately, altering the existing forms by hand. 

Several also said they’d waive the normal three-day waiting period and allow people to get married on the spot.

That would have been emotionally satisfying for people, including me, who believe people should be able to marry whomever they wish. But I have to say that I feel the judge did the right thing.

If he had struck down the ban, Michigan Attorney General Bill Schuette would have immediately requested his order frozen until the issue could be appealed to higher courts. Even if gay marriage were to be ultimately ruled unconstitutional, any hurried marriages might well have been invalidated on entirely technical grounds. It isn’t legal to use marriage license forms that haven’t been approved by the Department of Community Health.

But I think the biggest reason to support what Judge Friedman did is this: Had he ruled as many people hoped yesterday, his opinion would have been seen as a political, not a judicial one. By holding a trial, he will create a body of evidence that may be much harder to summarily overturn. That is, unless the U.S. Supreme Court acts on a different case first, and issues a ruling that affects or overturns Michigan law.

My own reading of what the nation’s highest court has already said indicates they may leave this issue up to the states, which could mean Michigan would need to hold another referendum. We’ll see.

But when same sex couples do win the right to marry in Michigan, I think they should have the unchallenged right to marry with as much dignity as anyone else.

Judge Friedman didn’t do the easy thing yesterday. But years from now, legal scholars may think he did the right one.

Jack Lessenberry is Michigan Radio’s political analyst. Views expressed in the essays by Lessenberry are his own and do not necessarily reflect those of Michigan Radio, its management or the station licensee, The University of Michigan.

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