Michigan couple poised to make gay marriage history
WASHINGTON — April DeBoer and Jayne Rowse had their hands full with four small children Friday when the Supreme Court sorted through four cases that could decide the fate of same-sex marriage.
Their immediate focus changed, however, when white smoke emerged from the justices' private conference room in the late afternoon. The challenge they filed in 2012 to Michigan's gay marriage ban was among the cases chosen.
"Did we think we would be here? No," Rowse says by phone while DeBoer juggles the kids, ages 2 through 5. "The odds in Vegas were probably a million to one."
Those were roughly the same odds of being killed in a head-on accident with a truck on a snowy Ohio road a few years back — a near-collision that launched their original lawsuit against Michigan's ban on joint same-sex adoptions.
All four of their children are adopted; Nolan and Jacob are 5, Ryanne 4 and Rylee 2. But in states that ban same-sex marriage, only one person can be a "parent." As a result, Rowse, 50, and DeBoer, 43, each have adopted two children and have no parental rights for the others.
That lawsuit was amended later in 2012 to challenge Michigan's gay marriage ban, approved by voters in 2004. They won in federal district court last March after a two-week trial — testimony from which would provide facts and fiction for the Supreme Court to review. It's that transcript that separates their case from all others under consideration.
Some 323 gay and lesbian couples got married the day after that initial victory, before the weddings were shut down pending appeal. They have been in legal limbo ever since, but on Thursday a federal judge ruled that the state must recognize those marriages.
In November, Judge Bernard Friedman's ruling was overturned by the U.S. Court of Appeals for the 6th Circuit, along with cases from Ohio, Kentucky and Tennessee. Couples from all four states sought Supreme Court intervention, which could come as soon as Friday.
The Ohio and Tennessee cases involve a lesser issue — whether states can refuse to recognize same-sex marriages performed elsewhere. In Kentucky, Attorney General Jack Conway refused to defend the state's gay marriage ban, forcing the governor to hire outside counsel.
THE NEXT EDIE WINDSOR?
That left DeBoer and Rowse as the leading contenders to become the next Edie Windsor — the New York octogenarian whose lawsuit led to the high court's 2013 ruling against the Defense of Marriage Act. That forced the federal government to recognize same-sex marriages performed in states where it is legal — a dozen at the time, 36 today.
As a result of that case, Windsor the woman is now Windsor the case — as in United States v. Windsor, which she filed to recoup the estate taxes she was forced to pay after her spouse, Thea Spyer, died. She has been feted from Greenwich Village to the White House and is recognized almost everywhere she goes.
"I don't think we ever set out to be the next Edie Windsor," DeBoer says, while Rowse takes her turn with the children. They are a handful: Two were born 3 months prematurely and still have significant special needs, while the other two have largely recovered from initial physical and mental delays.
"Jacob would never be alive today if it wasn't for April and Jayne," says Dana Nessel, one of their attorneys. "He was never supposed to live."
The couple stagger their 12-hour, overnight shifts as hospital nurses so that one of them can be with the kids while the other works or sleeps. Until now, that hasn't stopped them from taking in foster children.
"We enjoy helping children and opening our home to kids that need a home, even temporarily," DeBoer says. "When the fit is right, and when they go up for adoption, we do adopt."
Their goal is to make that process more accessible for other gay and lesbian couples, many of whom want the comfort of knowing that both partners will be legal parents.
"In Michigan, we're legal strangers," Rowse says. "A judge could give our kids to anybody."
A FOCUS ON CHILDREN
With DeBoer v. Snyder and other cases involving children included among the cases that could take same-sex marriage national, the question of how children fare will be front and center, just as it was during last year's trial.
In his district court ruling, Friedman credited the testimony of witnesses who said children of same-sex couples have similar outcomes to those raised by heterosexual couples. He called a state witness who argued otherwise "entirely unbelievable."
"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 no longer impair the rights of their children and the thousands of others now being raised by same-sex couples," Friedman concluded.
Appellate Judge Jeffrey Sutton's opinion did not reverse that finding. "Gay couples, no less than straight couples, are capable of raising children and providing stable families for them," he said. Nevertheless, Sutton ruled that states have the right to limit marriage to a man and a woman.
Given the Supreme Court's 5-4 split on Windsor, DeBoer and Rowse are aware that a decision on the new, combined challenge from four states might not go their way. Would they move from their Midwest roots to a state where gay marriage is legal?
"We truly believe that we're going to win and that we won't have to face that decision at some time in the future," DeBoer says. "We're headed toward one goal, and that goal is that it's going to be legal in all 50 states."