DETROIT -- A judge said Thursday that a lesbian couple seeking to jointly adopt children made a "compelling" case that Michigan's gay marriage ban violates the U.S. Constitution, but he wants to wait for guidance from the Supreme Court before deciding whether to throw it out.
U.S. District Judge Bernard Friedman heard arguments from the two Detroit-area nurses who filed a lawsuit last year attacking a Michigan law that prohibits them from jointly adopting children because they're not married. At Friedman's suggestion, they expanded their challenge to the gay marriage ban approved by 58 percent of Michigan voters in 2004.
But Friedman said he would benefit from seeing how the U.S. Supreme Court handles cases involving a gay marriage ban in California as well as the federal Defense of Marriage Act. Arguments are scheduled later this month in Washington.
An immediate ruling in Michigan "would not be fair to either side," Friedman said while holding court in front of students at Wayne State University law school.
"They're going to give us something to hang our hat on," he said of the Supreme Court.
Assistant Attorney General Joseph Potchen said the two women, Jayne Rowse and April DeBoer, are doing a "wonderful job" raising three young adopted children. But he said the Legislature or the ballot box, not a federal court, is the appropriate forum for their opposition to laws that affect same-sex couples.
"That's what democracy is all about," Potchen told the judge.
But an attorney for the women, Carole Stanyar, said "fundamental constitutional rights" can't be settled by popular vote.
With same-sex marriage, civil unions and joint adoption prohibited in Michigan, gays and lesbians in the state are treated as "second-class citizens," Stanyar told the judge in arguing the ban violates the Equal Protection Clause in the U.S. Constitution.
"Same-sex relationships are no different than heterosexual," she argued. "They're grounded in love, commitment. ... This is the defining civil rights issue of our time, the last remaining group in our society denied equal protection."
Potchen told the judge that Michigan's defense mostly rests on a 1971 case in which two men were denied a marriage license in Minnesota. The U.S. Supreme Court declined to take an appeal, so the result has stood and has been cited for decades as critical precedent across the country.
Friedman suggested it was a strong argument. But its value could change depending on how the U.S. Supreme Court settles the California same-sex marriage case.
Rowse, 48, has two adopted sons, and DeBoer, 41, has an adopted daughter. If either woman died, the other would not be instantly recognized as the legal parent of the remaining children under Michigan law, even if instructions were spelled out in a will.
After the hearing, Rowse said she would have preferred an immediate decision from the judge but can wait.
"We've waited over a year at this point," she said. "Another few months won't make a difference."
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