On Friday afternoon, U.S District Judge Bernard Friedman struck down Michigan’s gay marriage ban, holding it to be a blatant violation of the Fourteenth Amendment’s Equal Protection Clause. The ruling is emotionally compelling if not particularly creative; Friedman uses a rational basis test (my pet peeve) and dismisses the state’s absurd responsible procreation argument. But where Friedman’s ruling truly shines is in his discussion of the marriage ban’s most tragic victims—the myriad families who must see their commitment denigrated as unequal in the eyes of the law:
In attempting to define this case as a challenge to “the will of the people,” state defendants lost sight of what this case is truly about: people. No court record of this proceeding could ever fully convey the personal sacrifice of these two plaintiffs who seek to ensure that the state may not longer impair the rights of their children and the thousands of others now being raised by same-sex couples.
Here, Friedman is very clearly echoing the concerns of Justice Anthony Kennedy, who famously forced gay couples’ children into the spotlight when the Supreme Court reviewed California’s Proposition 8:
There is an immediate legal injury...and that’s the voice of these children. There are some 40,000 children in California...that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?
Justice Kennedy soon answered his own question by striking down the Defense of Marriage Act, holding that the law made it “difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” These are profound concerns, and Friedman clearly shares them, scathingly dismissing Mark Regnerus’ odiously anti-gay testimony as “a fringe viewpoint that is rejected by the vast majority of [his] colleagues across a variety of social science fields.” Simply mentioning Regnerus in a judicial opinion affords him more legitimacy than he deserves. But it’s satisfying nonetheless to see this charlatan so rightfully belittled.
Friedman will likely stay his ruling to give Michigan—which is committed to humiliating gay people—a chance to appeal. Celebration, however, is still very much in order. As Windsor continues to trample anti-gay animus in state after state, it’s worth remembering how far we’ve come in so little time. Had Justice Kennedy voted the wrong way last year, gay plaintiffs would have essentially no legal ground upon which to assert their marriage rights. Instead, his words have thundered through federal courthouses across the country. When Windsor came out last June, constitutional protections for gay marriage were thrilling and novel. Today, just nine months later, they’re practically old news.
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