michiganAri Ezra Waldman writes an interesting and useful  summary and analysis of Friday’s Marriage Equality ruling from Michigan and District Judge Bernard Friedman, but I think he misses some very important points that I want to put forward here. It isn’t so much I disagree with him, rather I’m not sure he himself has come to appreciate why the Michigan case which included a trial matters so much in the bigger scheme of things.

If you outline Waldman’s post, he seems to say two things:

  • The Michigan case contained a trial and that adds something important.
  • The US Supreme Court’s decision in Windsor makes trial irrelevant.

This seems a bit circular- the trial is good but not unimportant. How can that be? Here’s my take on an analysis.

Of the many cases that have ended up in a district court, two have included trials- the Prop 8 case before Judge Walker and this case before Judge Friedman. Waldman notes one significance :

What was unique about this decision is that, like Judge Vaughn Walker’s decision in August 2010 striking down California’s ban on same-sex marriage, it followed a trial, with witness testimony and cross examination. That hasn’t happened all that often since we began this fight. And despite the benefits to our cause, i.e., putting truth on the record,

Even though the Prop 8 case did this, it was also a botched case in that the US Supreme Court ruled the decision irrelevant because those who tried to defend the marriage ban lacked standing. All of the hard work that went into getting truth into the public record was for naught because that “truth” can not be cited or used to support other cases. This Michigan case now allows those facts and “truths” to be available to other courts and cited in other decisions.

The Prop 8 case was thorough and covered most every base leading to a meaningful decision. Indeed, the case was put forward in the way it was so that it would have everything needed to stand before the US Supreme Court. But more importantly, by allowing testimony to be given under oath, it added to public discourse surrounding the cultural issue of acceptance of marriage equality, every bit as much as it was there to support the legal discourse. This is no insignificant point! Indeed winning the cultural battle is every bit as important as having the legal decisions. Full equality will require both, and can’t be achieved on one or the other exclusively.

Waldman fails to discuss the value of the testimony offered in California and now again in Michigan concerning the ability for same-sex partners to raise children. In both cases, flawed research has been struck down and officially labeled as flawed, and there are few more valuable findings to help combat the cultural resistance to same-sex marriage. The Michigan decision puts fake studies like that of Regnerus away and renders them useless in future cases, and the importance of that can not be overstated.

Waldman places much importance on Windsor which is reasonable, but Windsor in and of itself doesn’t negate a State’s right to discriminate when it comes to issuing marriage licenses, and for any final US Supreme Court decision to stand unopposed, all reasons why a state might try to ban marriage must be considered and rejected.

The US Supreme Court decision in Prop 8 was good for California and those who had been legally married there, but a real failure for the Marriage Equality movement in general. Had it been a success, Judge Walker’s decision would be cited over and over again from state to state. But it isn’t, because the Supreme Court basically said Walker’s trial never should have happened. So cases like this one before Judge Friedman is making up for that.

If you wonder what a Constitutional decision without a Scientific decision might look like, consider what has happened in the fight for a woman’s right to choice/ reproductive freedom. A decision of the US Supreme Court didn’t render that battle as complete, because of how a Constitutional decision was reached, the Science of it has been hotly debated and pushed around by moral judgement. In other words, there was a Constitutional decision with no legal decision of the Science.

Like the Creationists, those who reject Marriage Equality because they believe “traditional marriage” is better for raising healthy children are being forced further and further into the fringe and their ideas seen as fallacious. This is essential so that a final legal/judicial ruling to grant Marriage Equality across the whole of the United States happens based on sound Science and a firm standing in the Constitution. Both will be needed for Marriage Equality to be permanent.


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