The State of Michigan knows two things about April DeBoer and Jayne Rowse. For one, they are superb foster parents, certified by the state and especially qualified to care for special needs babies. They may, in fact, have saved several lives.
Within a year, they accepted three perilously sick infants, babies born premature, drug-addicted, and with multiple physical and mental problems. They were not all expected to live.
But Rowse is an Emergency Room nurse by profession, DeBoer is a nurse in a Neonatal Intensive Care Unit, or NICU. Today, 4-year-old Nolan and 3-year-old Ryanne and Jacob are happy and thriving. The two nurses fell in love with all of them.
So much so that they wanted to adopt them.
Yet Michigan won’t let them. Because the other thing the state knows is that the two nurses are a lesbian couple. And Michigan expressly forbids adoptions by same-sex couples.
But that may be about to change. In less than two weeks, a federal judge may issue a ruling in a case brought by the two nurses that could overturn both Michigan’s adoption law and a state constitutional amendment forbidding same-sex marriage.
Such a ruling in the adoption case could signal a major change that may affect other states, if the U.S. Supreme Court ultimately agrees. It already has been a long legal battle.
“Think of the insanity of this,” said Dana Nussel, a former prosecutor who for two years has represented the nurses in an effort to overturn what she sees as a highly unfair law.
“The state certifies them as foster parents - as a couple. They send special needs children who otherwise might not have survived and who nobody wanted. But they can’t adopt them.“
Actually, the children have been adopted. Michigan does allow adoptions by single parents. When they realized the law wouldn’t allow a non-married couple to adopt, the nurses took action.
DeBoer, 42, legally adopted Ryanne; Rowse, 48, adopted Nolan and Jacob. But the couple soon realized if one of them were to die, the other would have no right to that woman’s children, who then could easily be taken from them.
So they went to Nessel, who, after a decade prosecuting child abuse cases for Wayne County, had gone into private practice. Though she does everything from criminal rights to family law, she has become more and more involved in civil rights cases.
“My dream is to live in a state as progressive as Kentucky,” he said during an interview last week. Not that the Bluegrass State is especially enlightened, “but when it comes to adoption rights, Michigan is one of the five worst states in the country.”
The lawyer filed suit on behalf of the nurses in January, 2012. The case was assigned to U.S. District Judge Bernard Friedman, who was not known as a notable constitutional liberal.
Initially, they were attempting to only get the state’s adoption law ruled unconstitutional. But then, the judge suggested the nurses broaden their suit to include Michigan’s 2004 state constitutional amendment banning same-sex marriage.
Last March, Judge Friedman indicated he was going to defer his ruling until the U.S. Supreme Court ruled on two gay rights cases.
Those rulings came in June. The high court essentially held that same-sex marriages were legal in California - and said same-sex married couples anywhere were entitled to federal benefits.
The judge then said he would reconvene and hear motions for summary judgment — where each side basically asks him to dismiss their opponent’s case without a trial — on the afternoon of Oct. 16.
Michigan Attorney General Bill Schuette is a staunch opponent of same-sex marriage and adoptions. He filed a brief remarkable for its stridency: “One of the paramount purposes of marriage in Michigan … is, and always has been, to regulate sexual relationships between men and women so that the unique procreative capacity of such relationships benefits rather than harms society.”
The idea of the state “regulating sexual relationships“ raised eyebrows among even some conservatives, “What about men or women who are infertile?“ one blogger wrote, asking if the attorney general should be refused the right to marry in Michigan.
For her part, Nessel hopes Friedman will promptly rule both the adoption statute and Michigan’s marriage amendment unconstitutional. Federal law, after all, always trumps state law.
Any such rulings would be appealed, a process which could take months, if not years. Higher courts would also likely issue stays pending appeal, meaning the laws would not change immediately.
But she thinks the U.S. Supreme Court has signaled that in the end, her clients are likely to win.
Meanwhile, back in Lansing … the Michigan House of Representatives is expected to vote soon on a bill that would allow private adoption agencies to discriminate against gays and other potential parents on “religious grounds,” even if they receive state funding - and even if same-sex marriage were ever to be legal.
Supporters of the legislation, primarily the Michigan Catholic Conference, say it is designed to protect “religious liberty rights.”
But opponents, including the American Civil Liberties Union, say it would about to “state-sponsored discrimination.”
If it passes, and is signed into law by Gov. Rick Snyder, the ACLU is likely to file suit against the bill on constitutional grounds.
Jack Lessenberry, who teaches journalism at Wayne State University, is Michigan Radio’s senior political analyst, an ombudsman and writing coach for the Toledo Blade and former foreign correspondent for and executive national editor of The Detroit News. He was named Journalist of the Year in 2002 by the Metropolitan Detroit Chapter of the Society of Professional Journalists.