Sunday, March 23, 2014

Now Heather Can Have 3 Mommies

deboerThanks to U.S. District Judge Bernard Friedman’s eagerness to overturn the decision of 2.7 million voters, Michigan’s bridal salons and hip second-hand shops are abuzz with 2-for-1 sales on plus-sized wedding dresses.

The Detroit media’s jubilant reaction on Friday evening was only slightly more one-sided than when the Tigers win a pennant. It was 6:10 before Fox2 Detroit even mentioned that there was an opposing party in the case.

The case was brought by a same-sex couple demanding the right to marry and adopt one another’s children, Judge Friedman has found that the Michigan Marriage Amendment (MMA) has to go, because the amendment’s language defining marriage as “the union of one man and one woman” doesn’t “advance any conceivable legitimate state interest.”

Now maybe you thought, as I did, that regulating marriage, which necessarily includes defining marriage, is fairly obviously a legitimate state interest. But that, not-so-patiently explains His Honor, is where we’re all wrong -- at least if we’re going to push so far as to clarify that “marriage” means a union of persons of the opposite sex.  The way Judge Friedman sees it, there is simply no rational basis for concocting a novel and eccentric legal definition of marriage as a union of a man and a woman.  Of the process by which the MMA was adopted by a majority of Michigan voters, Judge Friedman says in the language from a prior case, that he “can only conclude that the government’s actions were irrational.”

Attorney General Bill Schuette has filed a notice of appeal, and I expect Judge Friedman’s decision to be overturned by the Sixth Circuit.

There’s a lot wrong with this opinion. Principally, Judge Friedman held a trial when none was needed. Trials are held to find facts, and in this case there were no facts in dispute, at least none that were material. All parties agreed, including the court, that the whole issue of the lawsuit stood or fell on the question of whether or not the MMA, as a matter of law, could withstand “rational-basis review.” The defendant State of Michigan, citing U.S. Supreme Court precedent, pointed out that, under rational-basis review, “a legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.”  (Emphasis added).  And the burden of proof stays on the party attacking the law,  – in this case, the  same sex-plaintiffs – who must meet “the burden to negative every conceivable basis which might support it.”  (Emphasis added).

Under rational basis review, a court does not judge the perceived wisdom or fairness of a law, nor does it examine the actual rationale for the law when adopted, but asks only whether “there is any rational basis for the classification.”  (Emphasis in original).  

But Judge Friedman didn’t want to be limited to asking that, or rather, he didn’t want to be limited to answering that with a simple no, because then he would sound irrational, if not starkly cray-cray. That the correct answer is yes is beyond obvious: In a state where marriage has always been restricted to opposite-sex couples, an initiative to resolve to leave that restriction in place has a rational basis, even if a minority of voters don’t agree. 

To avoid ruling as he should have, Judge Friedman did two things. First, he adopted the false reasoning of the plaintiffs that the MMA’s restatement of marriage as a union of a man and a woman is a positive effort to harm same-sex couples. (He also implies same-sex marriage as a “fundamental right” recognized in federal law, which it is not).  In other words, rather than ask if there’s any rational basis for Michigan continuing its (and mankind’s) timeless practice of defining marriage as exclusive to members of the opposite sex, the judge wanted to ask instead if there’s any rational basis for Michigan voters to pass an amendment aimed at discriminating against homosexuals.* 

Next, Judge Friedman held a trial in which both sides’ social scientists engaged in mutual attacks on each other’s dodgy studies of same-sex parenting.  At the conclusion of this trial he then decided which set of experts he found more credible. Not surprising, he picked the experts whose studies found no evidence that this whole kids-being-better-off-with-a-mom-and-dad thing had any basis in Science.

Science, mind you. No evidence whatsoever. 

Voila!   Most of Judge Friedman’s opinion consists of a hectoring argument, thanks to the fact-finding he was forbidden to engage in under rational-basis review,  that kids of same-sex couples don’t do any worse in school than kids of heterosexual parents.  He uses this factoid to re-examine the rationale of the law when it was adopted – which also runs afoul of rational-basis review – as he sets about criticizing and rejecting the rationales anyway.  The testimony of defense experts that it’s optimal for a child to be raised by opposite-sex parents – a rational speculation even without the need for empirical proofs – was dismissed out-of-hand by the judge as so much pseudo-science.     

Having brought forth this factual mouse after much labor, Judge Friedman makes it the basis for his intellectual pretense that the sex of the parties has no rational relation to the regulation of Michigan marriages.  Even if, for argument’s sake, the plaintiffs’ experts are right, there’s more to marriage than how kids do in school.  Remember that the State of Michigan doesn’t need to prove that the MMA is perfect, all-wise, or will be the first law in history that doesn’t make someone unhappy – it’s presumed to be constitutional if there was a rational basis for adopting it.  We’ll see if the Sixth Circuit comments on the way Judge Friedman shifted the plaintiffs’ burden to “negative every conceivable basis which might support” the MMA onto the defendant to make a factual showing that heterosexual child-rearing is better than homosexual child-rearing.  

The Sixth Circuit ordered a stay Saturday afternoon, but at least 4 Michigan county clerk’s offices opened on Saturday morning, which they never do, in order to hand out as many licenses as possible. Would it be cynical to speculate that the rush wasn’t because true love can’t be held back one more moment, than establish a fait accompli of same-sex marriages to complicate the matter when Judge Friedman’s opinion is reversed?


*The thinking is analagous to that of the spoiled child who denounces her parents’ reasons for refusing to buy her a brand-new Camaro -- that the finances are impossible, that she doesn’t need her own vehicle, and that none of the other siblings  got their own cars – because the real reason is her parents hate her and always have.  The homosexual-rights movement has been brattiness on steroids. 

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