Deboer v. Snyder – day 9, part 2

Closing argument from Michael Pitt, Attorney for Oakland County Clerk, Lisa Brown, co-Defendant.

Ms. Brown is a public official who can and will issue marriage licenses to same sex couples.  Her allegiance is to this Court and this Court alone.

Michigan marriage amendment is of no consequence.  The Constitution provides protections to fundamental rights that go beyond the marriage ban.  She has taken an oath to uphold the Constitution.  In Lawrence v. Texas, the Court found a fundamental right to marriage, procreation, relations, and child bearing.  At the heart of this freedom, people have the right to determine their own concept of existence.  Committed same sex couples live together sometimes for decades as a family, raise children, help each other in times of illness, help each other’s families and should be therefore each other at the end of life.  The State and their experts have engaged in “breathtaking hypocrisy”.  Their position is “flat out irreconcilable” with concepts of freedom under the  Constitution.

Clerks have no discretion in carrying out duties.  They can make no determination of fitness or personal assessment.  Marriage is “so rooted in the notions of personal liberty, that the clerk may not inquiry into the relationship.

The marriage ban perpetuates inequality.  It ensures that the relationship will not now and not ever be worthy of recognition.  It ensures that homosexual couples will forever be banned from marriage. The “sanctioned humiliation must end and end now!”

State has essentially conceded this by continuously arguing their “fall-back position”, essentially saying, your honor, if you think our studies are not reliable, then you probably should wait.  Striking down the ban is too dramatic and you should wait until the research is complete.  They give no timeframe for that.  Due to the unreliability of their own studies, the Court should wait.  It would be error for the Court to take the State’s fall-back position.

The State has given no evidence to justify their arguments.  In Claybourne v. Claybourne Living Center, a case that examined the ability of a community to ban a group residential home, the Court stated that near negative attitudes or fear are not reasons for treating groups of people differently.

There is no evidence that opposite sex marriages will be harmed.  Harm to same sex families is REAL, not abstract and speculative.

The Clerk requests that the Court, if striking down the ban, explicitly restrain the State from in any way interfering with issuing marriage licenses to same sex couples, and further state that any interference will be deemed a violation of this Court’s Order.  The Court’s Order should make it clear that personal feelings and beliefs should give way to the Court’s directive.

There has not been any request for an automatic stay, and the Court can grant an injunction against interference with the Order.  The State would have to request a stay, and that analysis is subject to the same four factors as for granting a preliminary injunction.

Judge Friedman interjected that if a Motion for Stay is made, that he will require notice to all parties.

Mr. Pitt continuing:  Impresses on the Court the importance of moving to a decision quickly and recites several important rights that same sex couples are missing out on while this matter is pending.  “Time is of the essence”.

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