Michigan’s Marriage Equality Ruling: A Summary and Analysis

Judge Friedman's decision was based solely on the Equal Protection Clause and decided on rational basis review. Regular readers of the Towleroad law column will know that the means immediately.

First, "rationale basis review" is the lowest form of the judiclal scrutiny; it is the lowest hurdle for laws to pass. We have seen several opinions, including a recent appellate court opinion from the Ninth Circuit, argue that discrimination on the basis of sexual orientation merits a tougher standard, what we call "heightened scrutiny," but Judge Friedman was treading a well-worn path here. He argued that Michigan's ban on same-sex marriage was so irrational, so untethered to any legitimate state goal that he did not have to bother with the scrutiny debate: the ban fails even under the lowest standard.

MichiganJudge Friedman's decision on scrutiny was also hemmed in by appellate court precedent that he has to follow. The Sixth Circuit, which governs Michigan, has previously held that rational basis is appropriate. As a district judge, Judge Friedman was not willing to defy his superior court even though other judges have used Justice Kennedy's decision in Windsor as a tool to do just that. 

His failure of boldness makes his decision more similar to the pile of pre-Windsor marriage equality decisions, which, more often than not, put aside scrutiny and just declared bans dead. Even though I believe we do merit heightened scrutiny when the state discriminates against us, several gay rights legal scholars have argued that Windsor, for its hazy language on such standards, is part of an attempt by Justice Kennedy and others to do away with scrutiny levels altogether. But that's a broader conversation for a future column.

Second, the Michigan decision rested solely on equal protection even though several other cases — from California to Utah, for example — argued that marriage discrimination violates the Equal Protection Clause and the Due Process Clause. Judge Friedman thought the latter line of reasoning — that marriage is a fundamental right due every American and can only be taken away or restricted for a really good reason — was unnecessary because the ban so clearly violated the guarantee of equality.

Here, too, Judge Friedman has a lot of company. It is a tradition, a norm of judicial decision-making, that you decide the case in front of you and that's it. Judges and lawyers are taught that we use the most narrow means of answering the particular question posed by the controversy at bar and any broader statements are superfluous. Hence, Judge Friedman's narrow, even conservative, decision to limit his rationale to one clause of the Constitution and to refuse to touch the scrutiny debate. He didn't have to.

LmcWhat is notable about this case is that it followed a trial. Judge Friedman heard witness testimony about gay families and couples, about child rearing, about the needs of the state, and about social science literature related to marriage and raising families. Many (but certainly not all) of Judge Friedman's colleagues have decided to strike down bans on gays marriage without trials; they relied solely on the facts and legal arguments presented in briefs and motion papers. 

There are two takeaways from this situation.

First, if we recall back to the Prop 8 trial that culminated in Judge Walker's decision, the first of its kind in the nation, the benefits of a trial were clear. Forcing our antigay opponents to go on record, to swear under oath, and to sit for cross-examination stripped them of the ability to lie and mislead that a political campaign grants them. It brought sunshine to the shadowy realm of antigay bigotry. And, perhaps more importantly, it laid bare for the American public that an impartial quest for truth revealed the utter irrationality of preventing gays from marrying.

Trials on same-sex marriage, then, are beneficial.

But, they may be less frequent and less necessary going forward. Even a cursory reading of the district court cases since Windsor makes clear that the Supreme Court's decision in that case was a game-changer. It required that gay persons be treated with "equal dignity" and, even though the case itself was strictly about already legally married same-sex couples, Justice Kennedy's decision seemed broader. At least one judge found that the decision, which never explicitly mentioned scrutiny, demands heightened scrutiny anyway. And several judges have cited Windsor as arguing for a general principles of gay equality and, therefore, making all bans on gay marriage untenable.

If that's true — we will save the "if" for another column — then one wonders: what's the point of a trial? Everyone agrees that bans on gays marrying is a form of discrimination. The debate in the federal courts has always been about whether the discrimination is permissible given the Constitution's equal protection and due process guarantees and the appropriate level of scrutiny. So, if we agree on the facts, then a trial seems superfluous, especially if Windsor makes the death of these bans a fait accompli.


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Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.


  1. abel says

    Excellent, as always. Thanks for shedding light on the thorny legal aspects for all of us. The “shadowy realm” of Regnerus’ pack of lies certainly needed some courtroom “sunshine” and I’m glad it has gotten it.

  2. Lymis says

    I’m honestly assuming there’s more to come, because this seems unusually unsatisfying as an analysis. Pretty much boils down to “duh.”

    It’s also somewhat disingenuous to imply that this is all settled law – because while it seems inevitable that it’s about to be settled and the way in which it’s about to be settled, the reason we have so many ongoing lawsuits chipping away at this from so many varying directions is that, regardless of how “obvious” it all may be, it’s NOT settled law, and more importantly, it has not extended beyond the courts and into the lives and circumstances of the citizens most affected by it. Until it not only becomes the consensus of legal analysts but actually translates into the laws as enforced, these lawsuits are unfortunately necessary.

    There are ways in which it matters deeply that Windsor seems to imply other things, but until it stops being implied and becomes implemented, we’re nowhere near done, and complacency seems misplaced.

    The author knows that. I have to assume that this is just an unfortunate slicing of a much longer analysis into smaller pieces.

  3. AKChris says

    Ari, I think you missed the most valuable piece element coming from this trial, and that is Regnerus’ work and testimony being heard, examined, cross examined, and found wholly unworthy of being called science. This trial formally debunked Regnerus’ political attack against LGBT families on the record.

  4. says

    Ari, I respectfully disagree. Every gay rights case should include Gay 101 to educate the Court on facts that LGBT persons and lawyers accept a priori. The failure to do so in the Trial Court allows the Scalias of this world to write on appeal that factual disputes exist (when in fact they do not).

  5. Mark says

    I’d agree with several of the above: while lots of trials might be unnecessary, this one played an important role in having a judge discredit Regnerus–which can then be used down to the road in the 4th and 10th circuit cases, since both UT and the VA clerk are prominently using Regnerus in their briefs.

  6. says

    It seems very odd to write an analysis of the case without actually naming Regnerus and Allen and alluding to the fact that their “studies” were rejected in the finding of fact.

    “entirely unbelievable and not worthy of serious consideration”

    That verdict will now follow Regnerus, and it should be translated into all languages of the world, where his study is cited all the time. In the world I inhabit (academia) this is much more important than just the legal twists and turns.

    The right spent all that money on “studies” that got them ZIP in the courts. The golden boy of the anti-marriage movement has been shown to be the fraud we all knew he was.

  7. Dharun Ravi Fan Club says

    Ari, thank you so much for defending Tyler Clementi’s bully. It took amazing courage for you to champion the cause of an arrogant thug who degraded a gay kid for the lulz. As we approach the 4th anniversary of Clementi’s death, Dharun is now living a fabulous life!! Keep up the great work!

  8. Marco Luxe says

    The real news out of the trial is that the court called Regnerus a liar in such strong terms it approaches a finding of contempt.

    Another issue the press must dissect is the criteria for issuing a stay after judgment. These cases don’t merit a stay as there is no concrete and particularized harm to the movant/state. Cowardly district and circuit courts are simply deferring to vague and cagey SCOTUS decisions, including the improper SCOTUS stay without comment in Utah.

  9. Jim says

    Ari: I think Friedman did us favor by having a trial really debunking all the junk anti gay junk science. The anti gay front has no more expert witnesses, and you can bet that Regnerus and his bunch will never be on the stand again. When I read the transcript I was amazed how fast they fell apart under cross examination. Now all NOM and AFA has is the religious argument and no judge will let that decide a case. Michigan is significant moving forward.

  10. Robert says

    Thank you, as usual, for this analysis Ari but I have a question:

    Isn’t the judge using rational basis review preferable to heightened scrutiny? Meaning, isn’t it better to have a federal judge rule that this ban is so irrational it serves no compelling state interest? It seems to me that’s more powerful than a judge needing to use heightened scrutiny–the discrimination is so blatant it serves no compelling interest. I’d appreciate a clearer explanation of this if you could.

    And as others here have commented, it seems to me that because this case was a trial it served a great purpose– the judge’s complete and utter tearing apart of the state’s “experts,” especially Regenerus, making these so-called experts’ opinions and data less likely to be used in the future. Isn’t that a major outcome of this trial?

    Reading Judge Friedman’s decision I thought it was among the most powerful and forceful marriage equality decisions I’ve yet read. I understand the huge impact of the Windsor decision, but as I read this most recent decision from this Reagan appointee, I thought: this really is the beginning of the end of marriage inequality.

  11. Jim says

    Also after reading the transcript and ruling, I see no chance of appealing the decision. Am I wrong?

  12. Rich says

    I’m glad Ari is providing this forum of analyzing marriage equality law for non-lawyers. I was surprised this time that the comments seemed to have more pertinent analysis than the original column. Thanks to all of you.

  13. says

    I agree with many others here who note that the takeaway from this is that the trial was an excellent thing for our side. Regnerus & Co are not credible witnesses and the trial put it in black and white for everyone to see. Though the judge could have come to the same conclusion without a trial, shining light on the emptiness of the opposition’s arguments serves an important purpose.

    The judge’s “failure of boldness” could also be a good thing. It’s hard to stick the “activist” label on a Reagan-appointed, cautious judge. Of course the opposition will try (anyone who rules in favor of gay rights is activist in their books) but I would think this cautiousness puts the state in an even more difficult position. If their arguments fail at the lowest possible bar, they fail even more so at higher ones.

    And the ruling is recommended reading–highly entertaining (especially the priceless Regnerus smack down) even for the non-lawyers among us.

  14. jamal49 says

    It’s a crazy way to achieve equality to try and do it through the court system. What must happen in the end is that SCOTUS must make that one courageous all-encompassing decision that LGBT people are equal citizens, that no impediment can be used to keep consenting, adult, same-sex couples from civil marriage. Look what happened. The Michigan decision has a temporary stay until Wednesday of this week! So, for now, marriage equality in Michigan is in limbo.

  15. TKinSC says

    There are in fact quite a few problems with this whole case:

    1) Courts have authority to decide issues of fact, but that means particular facts relevant to “what happened?”, not general facts regarding “what has science shown?”. Therefore, a “trial” over whether or not children fare better in opposite-sex households was completely inappropriate. The appropriate place to debate that issue is the legislature, and said legislature answered “yes”, and believed it so strongly that they (and the voters) enshrined it in the state constitution.

    2) The judge belies his own claim of applying the rational basis test when he says that fear of changing the status quo does not justify abrogating a constitutional right. “Things have always been this way and we find it most prudent not to change it” is surely a rational basis. If the judge wants to apply heightened scrutiny then fine, but he should at least be honest about it.

    3) Related to 1), and in agreement with Ari, I believe the state was foolish to try to “prove” scientifically that opposite-sex households are better for children, because that concedes the point that the state is required to provide such proof. A better argument for the state, particularly under the rational basis standard, is that *it believes* that restricting marriage to opposite-sex couples is best for children, and that such considerations are most appropriately left for a legislature and not a judge.

    But an even better argument is not factual but legal: Whatever the 14th Amendment may mean, it surely cannot be construed to require something that has always been prohibited in 2/3 of the states (and all states until 10 years ago). Keeping in mind that the 14th Amendment was ratified by the states, the notion that those states would ratify a constitutional provision voiding their own public policy is quite simply absurd and untenable.

    This is the argument the states should be vigorously advancing. Just because they’re labeled as defendants doesn’t mean they should keep playing defense.

    4) Judge Friedman, for all his ostensible desire to have a trial to ascertain the truth, had no problem cavalierly throwing out the accusation that most Michiganders voted for the constitutional ban simply because of their religious beliefs. Not that it matters; under the rational basis test, *why* they passed it is irrelevant. It was their right to pass it, so long as they *could reasonably have believed* that it was in the best interests of their state and society (and children in particular). And the text of the amendment indicates they did believe just that.

    5) By not issuing an immediate stay, the judge removed all doubt that he is an activist. Being a Reagan appointee doesn’t always insulate a judge from seeking his moment in the sun. Shame on him.

    And shame on all the county clerks who were chomping at the bit to open their offices on Saturday and who waived the three-day waiting period because they knew the judge’s order wouldn’t last long. They should be fired (if not jailed) for going out of their way to betray the constitution of the State of Michigan.

  16. TKinSC says


    Nobody has ever said that LGBT people aren’t equal citizens. They are equal, and have the same right as non-LGBTs to marry according to the same rules: the spouse must be a consenting adult (or older child with parents’ or judge’s permission), not already married, not too closely related, and of the opposite sex.

    By your argument, a consenting adult brother-sister or even father-son couple should also have the right to marry. I doubt even most “marriage equality” supporters would want to go there (although that would in fact be the true definition of marriage equality).

  17. MiddleoftheRoader says

    Contrary to one point in the main article, there is a huge benefit in having a trial in a district court with witnesses and factual conclusions: if a judge makes factual findings after a trial and then relies on those factual findings when s/he then reaches a legal conclusion, the appellate courts (including the Supreme Court) almost never second-guess the factual findings. They might disagree with the legal analysis, but it’s very hard for them to upset the factual findings.

    But in district court cases where the legal conclusions are based merely on things like “common sense” or “Windsor says…..”, and there is no trial and no factual findings, then an appellate court gives ZERO deference to the district court’s conclusions. Instead, it decides the case as if it’s a brand new legal matter (or as lawyers say, the legal analysis is reviewed “de nouveau”, as if the appellate judges really don’t care what the district court judge decided).

    All of the above legal mumbo jumbo has real importance in the marriage cases. Under the rational basis standard of review, the courts will ask “does the state have ANY CONCEIVABLE rational basis for denying same sex marriages?” And if there is no trial and no factual findings, but instead the district court uses only its “common sense” to decide what’s rationale — well, that means appellate judges and the Supreme Court can substitute whatever they think is or isn’t rational. But if the district court forces the state to give it reasons (all of them), and then if a trial with witnesses shows that these reasons are not “rational” — well that makes it much harder for the higher level judges to disagree unless they try to overturn the factual findings, and that’s what is very hard to do (as I said above).

    So, kudos to Judge Friedman for having a trial. This will make it tougher for the judges above to reverse his ruling, as compared to other cases where there were no trials.

    By the way, that’s the reason that Boies and Olson put on a full-blown trial before Judge Vaughn in California. They knew that if they won the “factual findings”, it would be very hard for the higher judges (including the Supreme Court) to overturn the trial court’s decision.

  18. MiddleoftheRoader says

    I’ve just read the posting by TKINSC and believe that most of it is nonsense. It makes no sense to respond to every point, but just a few will serve to demonstrate.

    TKINSC says that court should find only specific facts like “what happened?”, and not general facts like “what has science shown?” IN FACT, major court decisions — like Brown v Board of Education (outlawing separate-but-equal schools) was based in large part on the courts accepting many social science and other studies about the effects of separate-but-equal on Black children. This is precisely the “general facts” that TKINSC says courts shouldn’t do. Nonsense.

    TKINSC also says that “Whatever the 14th Amendment may mean, it surely cannot be construed to require something that has always been prohibited in 2/3 of the states”. Again, shared public facilities (Blacks and Whites) had been prohibited in well over half the states for a long time, but so what? And for almost 200 years after the USA was created, guns were prohibited or highly regulated in over half the states — but that didn’t stop the Supreme Court from “interpreting” the Second Amendment to strike down state restrictions on guns. I hope TKINSC is not a lawyer — if so, s/he should re-take a class in Constitutional Law.

    Likewise, when TKINSC says that it’s perfectly “rational” for a state to say that “things have always been this way, so it’s prudent not to change it.” Under TKINSC’s view of what’s “rational”, it would have been rational to put Copernicus to death for saying that the Earth revolves around the Sun because it was always thought to the contrary since Ptolemy and before. Or also rational to allow states to keep sodomy laws in effect — because they were around for a long time. All nonsense.

    Finally, TKINSC says that a state should have to show only that it is “rational” to “believe” something! Even if that is the correct standard, if all of the credible facts do not support that “belief”, or if virtually every single credible fact does not support that “belief” — well, it’s hard to see how that “belief” can be “rational”. It might be a sincere, firmly held, long-standing belief, but that doesn’t make it rational. Nonsense.

  19. says

    @MiddleoftheRoader: Agree with all you say about the importance of the trial. The judge’s choices and reasoning here will benefit the cases going forward.

    As for TKINSC, yes, nonsense. He uses convoluted quasi-legal blahblah to cover up irrational homophobia and delusions that the tide on marriage equality will somehow reverse to when marriage was a heterosexual-only institution. Magical thinking.

  20. TKinSC says

    @MiddleOfTheRoader – Yes, the Supreme Court relied on scientific studies to support their ruling in Brown v. Board, and they were wrong to do so, because the constitutionality of a law should not depend on science. After all, what if the science changes later on? Does an unconstitutional law become constitutional again? Not to mention that in the particular case of Brown, it is generally agreed that those studies were not scientific but rather were designed to reach a desired conclusion (much like the Regnerus study today).

    The Court should simply have said that racial discrimination is subject to strict scrutiny, and segregation fails that test because it doesn’t serve a compelling interest. No scientific studies necessary (or relevant).

    “Again, shared public facilities (Blacks and Whites) had been prohibited in well over half the states for a long time, but so what?”

    Perhaps, but most of those states were in the South, which ratified the 14th Amendment under duress. (Whether such duress was justified is a separate discussion.) If you look only at those states that ratified the amendment voluntarily, you’ll probably find the opposite result, or at least an understanding that such a result would necessarily follow from the Amendment.

    As for guns, the Second Amendment is clear. No construction is necessary. Not so with the Fourteenth, as all laws by their nature harm some more than others and therefore treat people unequally.

    “Under TKINSC’s view of what’s ‘rational’, it would have been rational to put Copernicus to death for saying that the Earth revolves around the Sun”

    That’s absurd. Even if Copernicus were wrong, the state would have no rational reason to put him to death. (And obviously, strict scrutiny would apply for a number of reasons, most notably the First and Eighth Amendments.)

    “Or also rational to allow states to keep sodomy laws in effect — because they were around for a long time.”

    Such laws *are* rational, as they help prevent the spread of AIDS. Unfortunately for Texas, they were subject to strict scrutiny for infringing on the constitutional right to privacy.

    “It might be a sincere, firmly held, long-standing belief, but that doesn’t make it rational.”

    In order to be irrational, a belief must be clearly unreasonable. For example, a law prohibiting homosexuals from driving would be irrational, as sexual orientation and driving ability are clearly unrelated. On the other hand, it is hardly irrational to believe that, overall, children do best when raised by a mother and father — especially their biological ones. That remains the case regardless of what the current scientific consensus may be. In short, if it needs a trial to decide whether or not it’s rational, then it’s rational.

    The judge in this case confused “I don’t believe it” with “It’s irrational”. And he should have known better. But if this keeps Regnerus off the stand, that can only be a good thing for gay-“marriage” opponents going forward, since our best legal argument is that the scientific debate belongs in state capitols, not federal courtrooms.

  21. Alan Katz says

    To TKINSC:

    One thing is obvious from your voluminous posting – that you never read the decision before you passed judgment on it.

    Judge Friendman clearly stated, (repeatedly) in his ruling that even though the science “against” marriage equality was B.S., it doesn’t really matter, because there is not now, nor has there ever been a requirement for people applying for a marriage license to prove they were “good parents”.

    He had a really good point, stating that studies tell us that Asians, high-income families and families in the suburbs produce offspring with “better outcomes”, yet no one would dare suggest that only rich, suburban Asians should be allowed to marry, and heterosexual white people of low income who live in the cities should not – only that gays shouldn’t.

    He also pointed out that no state has EVER required an applicant for marriage license to swear or prove that they are 1)able to procreate and 2)willing to procreate. So what, do we disallow the elderly and the infertile from marrying? No, just gay couples.

    And your last point is, perhaps, the most bizarre – that courts should not undo policies that have been in force for many years, the absurd and bogus “tradition” argument.

    If that were the case, we’d still have slaves, blacks and whites would still be prohibited from marrying each other, women would still be without the vote, and young children would be working in the sweatshops. After all, these policies have persisted for thousands of years!

    Oddly enough, your arguments are nearly identical to those that bigots in the South brought against integration and civil rights in the 1960s,

    Aren’t you embarrassed? I know I’m embarrassed for you.

    BTW, did you, by any chance, take any law classes from Mark Regnerus?

  22. tooth2power says

    This argument is specious on both sides and an exercise in futility until SCOTUS hears the backlogged appeal cases and decides.
    I for one doubt they will overturn the 10th Amendment as the recent Affirmative Action ruling comports with it.
    I.e. Every state’s citizens have the right to choose to implement (or not to implement) a policy regardless of it’s “good intentions”.