Editor's Note: Long-time attorney Charles Kleinbrook is
reporting for CALL about the DeBoer v. Snyder trial in Detroit this week that
challenges Michigan's Marriage Protection Amendment, passed in 2004 by 59
percent of voters. Two lesbians are suing to overturn the amendment so that
they can adopt each other's children. This report is about the court
proceedings on Tuesday, the first day of the trial.
By Charles Kleinbrook
Keep in mind this is a bench trial, meaning there is no
jury. A judge who you might like or not like will determine if an amendment
passed by 59 percent of voters to the Michigan Constitution violates the 14th
Amendment. (This will evolve into my argument in later articles about howjudges are now inserting themselves into politics so much
that I am rethinking my former stance that federal judges should be appointed;
but that's an article for another day).
As expected, the plaintiffs started their experts in a
parade from sociology to psychology, all concluding that there's no statistical
difference in comparing healthy outcomes of children from heterosexual
marriages versus any other kind. They introduced a legion of various studies.
The State tried to get the expert in psychology to
acknowledge there are mixed outcomes of studies, there is a great deal of
statistical variation contrary to the experts' conclusions, and the expert on
the stand had to agree.
The psychology expert agreed that there are contrary
studies, but he refused to call them studies or research, he labeled them
"allegations within the studies." The State attorney dropped
the ball on the subtlety. The expert took offense to a question on the idea
that parties in all consensual relationships can adopt children based solely on
the level of a "loving commitment." But when asked whether or not two
sisters could adopt as a married couple he called that question ridiculous.
Again, the State dropped the ball and did not ask "Why it is ridiculous?" Why
not? How would the expert define "loving?" If they are lesbian
sisters, why not let them adopt? Why not two married brothers? If they
are gay, why not? There is no legal or ethical or moral difference in the
couplings, and the State unfortunately did not pick up on that.
BATTLE OF THE DATA SETS
The Plaintiffs expert asserted various studies with regard
to artificial insemination between married data pools and lesbian data pools.
All the plaintiffs agree that the resulting difference on the children is a
statistical tie. Thus, the first day's trial is a battle of the data sets.
The State attorney did a really good job on properly
questioning the psychologist on all the funding sources for the studies he
relied on. Those studies showed a bias due to the fact that they were
substantively funded by LBGT-slanted foundations.
The sociologist said that poverty almost always negatively
affects childbearing. I question that. It might be true in many
Western cultures, but we know that elsewhere, societies are quite healthy and
even thrive in poverty, e.g., the Inupiat people, northern herders, tribes in
the Amazon, Mongolia, and New Guinea. The State did not challenge the
sociologist on that. .any countries have very poor people yet have strong
families and outstanding child-rearing. The State seems to think that all the
data should be U.S. data, while this is a societal decision based on the
intrinsic nature of human beings, not U.S. census pool data.
At one point, after analyzing the data, the sociologist
concluded that wealthy Asian families had the most intact families; therefore,
the state statute should only allow rich Asian people to marry if the State
were held to its own goal of family stability. The courtroom laughed.
The Pla
intiffs are trying to make the State look foolish. In a
sense their expert did. I trust that the State's expert will share the same
giggles when asked to compare those comments, joke for joke.
CLERICS WEARING RAINBOWS
There were a number of clerics in the courtroom, to judge by
their garb. Many were wearing clerical collars often seen in the Anglican or
Episcopal Church, and most were wearing the "rainbow" emblems, which
signify support for homosexuality. Alas, the surprise that there was not a
single Roman collar.
Although Judge Bernard Friedman was very attentive to the
trial process and kind to everyone, he was very twitchy and during trial lulls
he went into rambling history lessons to the audience. He spoke about the
model cars on his rail, a stuffed eagle out of view, an old wooden jury
selection bin that he inherited. This was just plain weird for a judge may
would redefine one word: Marriage. This commentary might be appropriate
during a school group or tour, but not a case of this magnitude. Substantively,
Judge Friedman
never asked a material question only administrative ones like,
"what page are you on?" He never asked, "How, expert, do
you define marriage? Why? What do you base your answer on? How do
you define loving? How do you define commitment? Why is it ridiculous that a
sister cannot marry a sister given your definition? Would any chaos result from
your position?"
SCOPES?
Without key substantive questions like these by the State
and the judge, I felt like at times I was in the Scopes Monkey Trial!
++++
Trial Tidbits:
- Outside
the courthouse there picketers from both sides of the gay marriage
debate, about 30 in each group. Click here to read the New York Daily News coverage of the
trial, which includes photos. .
- Inside
the courthouse the infamous "rainbow" was everywhere. As
many as 40 people sitting in the courtroom were wearing the rainbow emblem,
including upwards of a dozen people wearing clerical collars.
- Protestant
pastors protested the trial and the challenge to traditional marriage at a press conference at on 8 Mile Rd. in Detroit. The
pastors' protest was reported in USA today.
A graduate of Catholic Central High School (where the
Basilians taught substance over form), Marquette University, and Cooley Law
School, Mr. Kleinbrook operates a general practice law firm in Highland,
Michigan, and has been advising individuals and small businesses since 1988. He
can be reached by email at: chip@chiplaw.info.
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