Thursday, February 27, 2014

DeBoer v. Snyder :Judge's bizarre behavior, courtroom antics

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.   

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.    
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?"    
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:
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:

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