Deboer v. Snyder – Day 9 Update 3

Attorney General’s closing arguments delivered by Attorney Heyse.

AG complimented the Judge and his staff for their graciousness.

Argues regarding second parent adoption that there is no fundamental right to adopt, and therefore it is not an issue in this case.  Disagreement as to the State’s methods for adoption are not subject to Constitutional challenge.

There is lots of emotion surrounding the case.  Emotions tend to blur the issues.  Marriage is between a man and a woman.  If reasonable people could disagree as to the rationale, then the Court has to rule for the State.  It is unfortunate that the Plaintiffs have had to make this about religion as opposed to science.  The experts have testified as to science and data, not their religion.

The State has multiple grounds for rational basis:  1) it is a good thing to have both a mom and a dad in a married relationship; 2) It is rational to believe that the State should promote that family structure; 3) the Court should proceed with caution. These are rational thoughts that the voters may have had when they passed the marriage ban.  The question should not be why not allow same sex marriage, or what harm would it do.  The voters were not answering those questions at the time they voted.

We should see their rationale as:  moms and dads are important; same sex marriage and parenting is too new; caution should be taken before eliminating a mom or a dad in the family; such a major change should be left to the voters.

The importance of moms and dads is very real.  Gender diversity in parenting is raising kids is important.  Different sexes bring something different to parenting, unique characteristics.  Men and women are different and not interchangeable and not dispensable.

State’s expert, Price, states that a father and a mother are ideal particularly if they are biologically related to the child and are married to each other.  There are benefits to biologically relatedness, therefore it is not irrational.  Goal is to encourage certain ideals, not to denigrate other family structures.  Not to say there are no other effective parental structures.  But – there are benefits to having a mom and a dad.  Therefore it is rational for the State to define marriage as between a man and a woman.

Same sex marriage is just too new.  Not a single generation’s worth of same sex marriage at this point.  No comprehensive study of children being raised by same sex couples.  Plaintiffs have failed to show that the people of the State of Michigan were irrational.

The studies are not settled.  Entirely debatable.  Not clear how children fare in same sex families.  If it is at least debatable, then the Court must rule in favor of the State.  Cites to studies that show children are not faring as well – Regnerus, Marks, and Allen studies.  Regnerus’ curiosity was piqued after the APA’s statement, so he began exploring further.  He took it upon himself to review all of the underlying studies.  No one paid him.  It was all on his own time and he found that the studies had flaws.  They were small, non-representative, convenience studies of privileged, while well-educated mothers without random participation.  They are of limited value – except, perhaps to psychologists.

The studies cannot and should not be used to make broad based decisions about the population as a whole.  APA’s claim of no studies showing negative outcomes existed is false.  There were 2 studies at that time.  The current studies are no sufficient to make long term decisions about policy changed.  The APA report was “lacking in substance and blurred the lines between science and advocacy”.

The large population studies that show outcomes are Regnerus, Price and Allen reports.  And, the Regnerus study was “never retracted”.

Barriers to these studies include a lack of protocol regarding identity of who is a same sex couple or household.  There is no ability to randomly locate and track children raised by same sex couples over a long period of time.

Price study replicated Rosenfeld’s study and found that outcomes of children were “not statistically significant, but there were differences”.

When controlled for “certain factors”, they found that children of opposite sex families were 25-30% more likely to make normal progress through school.  That is statistically significant.  Children of opposite sex families were 65% as likely to graduate.

Need large, long term, nationally representative study that tracks children of same sex couples.

This is not about political or religious views.  It is about science and the science is not settled.  Michigan voters acted rationally before re-defining marriage.   Ask whether including same sex couples in marriage would further the State’s goals.  We don’t know if same sex marriage will harm opposite sex marriage.  We don’t know, and the studies will not happen for years, so it should not be allowed.  Doing so puts the cart before the horse.

Lawrence v. Texas is distinguishable.  It is about same sex acts, not same sex marriage.  The difference between this challenge and the challenge in other states is that the other states did not consider reasons voters may have voted.  Did not consider that the science is unsettled.  Did not consider that moms and dads are different.  And, those courts misapplied the burden of proof.  Those cases did not have a trial.

Should the Court rule in plaintiffs’ favor, we do request a stay.  A stay is imperative to maintain the status quo.  Worth point out that the AG’s letter to the County Clerks did not tell clerks to disregard the law, but said that they must follow the law and abide by a stay.

Defining marriage is within the jurisdiction of the State per Windsor.  Clear Constitutional violation is the only way that Court can interfere with the State’s right to regulate marriage.  Voters relied on national trends at the time of the vote.  They voted to maintain the definition of marriage that has been the law in Michigan since the State began.  Plaintiffs cannot say that of the 2.7 million voters, not one had a single rational reason among them.  References the Baker decision.

This is likely to be back on the ballot soon.  Urges the Court to wait to let the voters decide.

Rebuttal from Mr. Mogill:

Nothing Ms. Heyse has said changes the law or the facts.  There is no need for rebuttal.

Judge:  complimented attorneys and their teams on both sides.  Complimented and thanked his staff.  Thanked the onlookers and the media for participating in the public court.  Expressed importance of the public nature and the checks and balance system in the justice system.

He needs to make findings of fact and law.  This will take some time as he has to review all of the testimony and the documentary evidence as well as read all of the relevant precedent before rendering a decision.    He said to expect a decision probably the week after next.  He will not be re-convening court to deliver the opinion, but rather will send it to the attorneys simultaneously and then immediately have it put on the Court’s website.

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