Judge puts Michigan’s course on same-sex marriage on hold

Sets trial in February before he makes ruling

 Tracy Pennington (left) and Dana Bauer learned Wednesday that they would not be able to apply for a marriage license in Ann Arbor, Mich.
Tracy Pennington (left) and Dana Bauer learned Wednesday that they would not be able to apply for a marriage license in Ann Arbor, Mich.

DETROIT — Stunning the courtroom, a federal judge said Wednesday that he will hold a February trial before deciding whether to overturn Michigan’s ban on same-sex marriage.

US District Judge Bernard Friedman said he will not make a decision until after hearing testimony Feb. 25 from specialists on whether there is a legitimate state interest in banning gay marriage.

“I wish I could give you a definitive ruling. . . . There are fact issues that have to be decided,” Friedman said.


He clearly caught the lawyers on both sides off guard, as they had agreed to have him decide the issue on arguments and briefs. More than 100 people were in the courtroom, anticipating a decision in favor of gay marriage, and dozens of others watched a video feed of the proceedings in a nearby room.

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A groan went up in that room when Friedman said he will wait.

Two Detroit-area nurses in a lesbian relationship, Jayne Rowse, 49, and April DeBoer, 42, wanted to adopt each other’s children, not rewrite Michigan law. But their lawsuit took an extraordinary turn a year ago when Friedman suggested they refile it to challenge the gay marriage ban.

In doing so, they argued that the state’s constitutional amendment declaring marriage as between a man and a woman violates the US Constitution’s Equal Protection Clause.

That amendment was approved by 59 percent of Michigan voters in 2004.


“This amendment enshrines discrimination in the state constitution for all time,” the couple’s attorney, Carole Stanyar, told the judge.

Moments earlier, she said US history has at times revealed a lack of humanity, “but at times we right ourselves . . . and reaffirm the principle that there are no second-class citizens.”

Rowse and DeBoer, who have lived together for about eight years, sat a few steps away at the plaintiffs’ table. They declined to comment outside court.

“We were all hoping for an immediate ruling, but they understand it’s a very long process,” co-counsel Dana Nessel told reporters.

An attorney for Michigan said the US Supreme Court has recognized that states have authority to regulate marriage. Kristin Heyse noted that more than 2.5 million voters supported the amendment.


“The people of the state of Michigan should be allowed to decide Michigan law. This is not the proper forum to decide social issues,” Heyse, an assistant attorney general, told the judge.

‘I wish I could give you a definitive ruling. . . . There are fact issues that have to be decided.’

Thirteen states and the District of Columbia allow gay marriage.

Several dozen people in favor of gay marriage rallied outside of the courthouse, and many supporters of striking down the ban believed a victory was imminent.

Oakland County Clerk Lisa Brown said there were lines of same-sex couples at her office eager to get a marriage license if the judge ruled in their favor.

“This was never a scenario we imagined,” Brown said of the decision to hold a trial. “One couple has been together for 53 years. I think they’ve waited long enough.”

In Ingham County, about a dozen frustrated couples left the courthouse after hearing there would be no immediate decision 90 miles away in Detroit.

Marnee Rutledge had a pink flower pinned to her shirt. Her partner, Samantha Wolf, carried flowers Rutledge gave her when proposing marriage earlier Wednesday. They had a ceremony in August nearby in Holt that was not a legal marriage.

“We are, in our minds, married,” Wolf said. “We had a ceremony, we took our vows. That we aren’t afforded the same rights as everybody who has stood up in front of their priest and loved ones — that’s wrong.”