Saturday, May 26, 2018
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Jack Lessenberry


Dubious witnesses taint Michigan gay-marriage case



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DETROIT — The verdict is not in, but for Michigan Attorney General Bill Schuette, last week’s high-profile same-sex marriage and adoption trial in federal court was not a shining triumph.

Mr. Schuette is defending Michigan’s 2004 constitutional ban on same-sex marriage. Two lesbian nurses, April DeBoer and Jayne Rowse, want to overturn the marriage ban while they seek to adopt three children jointly.

The prosecution’s case seemed to be largely an embarrassment. Mr. Schuette’s first “expert witness,” a student named Sherif Girgis who is pursuing a law degree at Yale University and a doctorate in philosophy in Princeton University, was ruled ineligible to testify after a couple of questions.

U.S. District Judge Bernard Friedman ruled, essentially, that Mr. Girgis is a bright young fellow, but is still a student and not yet able to appear as an expert witness about anything.

The prosecution’s last witness, Canadian economist Douglas Allen, presented a murky study supposedly showing there is no evidence that children of same-sex marriages do as well as those raised by heterosexual couples. Under cross-examination, however, he revealed that he believes gay people are going to hell.

So much for unbiased scientific testimony.

Mr. Schuette is running for re-election this fall. What may become an issue in his campaign is that he spent thousands of Michigan’s dollars to bring in these witnesses, along with Mark Regnerus, a sociologist at the University of Texas.

Even before Mr. Regnerus testified, his university repudiated his views, as did the American Sociological Association. Among the other things Mr. Regnerus opposes is in-vitro fertilization for married couples.

This was not a jury trial, and we don’t know how Judge Friedman will rule. But the odds would seem to favor another setback for Mr. Schuette and his cause.

If supporters of same-sex marriage and adoption wanted an ideal couple to test the legal waters, it is hard to imagine a better one than critical-care nurses Ms. Rowse and Ms. DeBoer, who live in suburban Detroit.

Years ago, the openly lesbian couple were certified as special-needs foster parents by the state of Michigan. They took in three babies with drug and developmental problems, one of whom wasn’t expected to live.

The children are thriving, and even the attorney general has conceded that the couple are spectacular caregivers.

They jointly wanted to adopt the babies, but Michigan doesn’t allow an unmarried couple to adopt. So Ms. Rowse adopted two of the children; Ms. DeBoer, the third.

However, they realized that if one of the women were to die, the survivor would have no right to the other’s child or children, who might well be taken away.

So they found an attorney and challenged Michigan’s prohibition of same-sex adoptions. Judge Friedman suggested they broaden the case by challenging the state constitutional amendment that outlaws same-sex marriage.

Attorneys for the women expected that Judge Friedman would strike down both laws last October. Instead, the judge ordered a trial.

Meanwhile, there has been a flurry of other decisions nationwide on same-sex marriages, none of them going Attorney General Schuette’s way. Federal judges have struck down same-sex marriage bans in Utah and Virginia.

Another judge did so in Texas. Kentucky’s attorney general said he would no longer try to uphold his state’s gay-marriage ban.

Seventeen states permit same-sex marriage. The U.S. Supreme Court last year voided California’s Defense of Marriage Act. Polls show a majority of Americans now think same-sex unions should be legal. Further rulings by the nation’s highest court are expected, possibly in response to these cases.

That doesn’t mean that Michigan’s attorney general doesn’t have a case. Mr. Schuette’s team argued that voters spoke decisively in 2004, when they amended the state constitution to define a marriage as between a man and a woman.

But before mounting his expensive full-court press with lots of dubious expert witnesses, Mr. Schuette might have considered the Jack Kevorkian assisted suicide trials two decades ago. Early on, it became clear that no jury was likely to convict Kevorkian, a pathologist who began helping suffering patients end their lives.

Most of his early cases were clear-cut and tragic. Kevorkian videotaped the people — most of whom could not be helped by medicine — who were begging to be allowed to end their suffering.

Prosecutors in Wayne and Macomb counties soon announced they would no longer press these cases. But Oakland County Prosecutor Richard Thompson kept taking them to court.

He too brought in out-of-state expert witnesses. But thanks in large part to flamboyant attorney Geoffrey Fieger, Kevorkian won acquittal after acquittal.

Finally, a young attorney named Dave Gorcyca challenged Mr. Thompson in the 1996 GOP primary. Mr. Gorcyca promised that if he got elected, he would stop wasting county money on fruitless Kevorkian prosecutions.

Voters agreed. Mr. Gorcyca badly defeated the incumbent, whose political career was over. Today, mostly forgotten, Mr. Thompson works for the Florida-based Ave Maria Christian law school.

I covered all those trials and often spoke to the jurors afterward. They mainly said they weren’t swayed by anything the expert witnesses for either side had to say.

Next week, we should see Judge Friedman’s ruling.

Jack Lessenberry, a member of the journalism faculty at Wayne State University in Detroit and The Blade’s ombudsman, writes on issues and people in Michigan.

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