2:12-cv-10285-BAF-MJH Doc # 141 Filed 03/10/14 Pg 1 of 19

Pg ID 3069

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION APRIL DEBOER, et al, Plaintiffs, v RICHARD SNYDER, et al Defendants. Civil Action No. 12-cv-10285 HON. BERNARD A. FRIEDMAN MAG. MICHAEL J. HLUCHANIUK STATE DEFENDANTS PROPOSED FINDINGS OF FACT (INCLUDING CITATIONS)

Dana M. Nessel (P51346) Attorney for Plaintiffs 645 Griswold Street, Suite 4300 Detroit, MI 48226 (313) 556-2300; Fax (313) 965-5580 dana@nesselandkessellaw.com

Carole M. Stanyar (P34830) Attorney for Plaintiffs 221 N. Main St., Ste. 300 Ann Arbor, MI 48104 (313) 819-3953 cstanyar@wowway.com

2:12-cv-10285-BAF-MJH Doc # 141 Filed 03/10/14 Pg 2 of 19

Pg ID 3070

Kristin M. Heyse (P64353) Joseph E. Potchen (P49501) Michelle M. Brya (P66861) Tonya C. Jeter (P55352) Attorneys for State Defendants Mich. Dept of Attorney General Health, Education & Family Services Division P.O. Box 30758 Lansing, MI 48909 (517) 373-7700; Fax (517) 351-1152 heysek@michigan.gov potchenj@michigan.gov bryam@michigan.gov jetert@michigan.gov

Andrea J. Johnson (P74596) Michael L. Pitt (P24429) Beth M. Rivers (P33614) Attorneys for Defendant Lisa Brown Pitt McGehee Palmer Rivers & Golden, P.C. 117 W. Fourth St., Ste. 200 Royal Oak, MI 48067 (248) 398-9800 ajohnson@pittlawpc.com mpitt@pittlawpc.com brivers@pittlawpc.com
/

Bill Schuette Attorney General Kristin M. Heyse Assistant Attorney General Attorneys for State Defendants Mich. Dept of Attorney General Health, Education & Family Services Division P.O. Box 30758 Lansing, MI 48909 (517) 373-7700 P64353 Dated: March 10, 2014

2:12-cv-10285-BAF-MJH Doc # 141 Filed 03/10/14 Pg 3 of 19

Pg ID 3071

PROPOSED FINDINGS OF FACT The Institution of Marriage 1. Marriage is a social institution. It encompasses a complex set of personal values, social norms, religious customs, and legal constraints that regulate a particular intimate human relation over a life span. See 2/28/14 Hrg Tr. at 13, 47 (Cott). Marriage forms the foundation of the family and society, without which there would be neither civilization nor progress. See Maynard v. Hill, 125 U. S. 190, 211 (1888). Marriage has been described as fundamental to the very existence and survival of the race. See Zablocki v. Redhail, 434 U. S. 374, 384 (1978). The core understanding that marriage exists to unite a man and a woman for procreative and child-rearing ends has never changed across time. See 2/28/14 Hrg Tr. at 13, 51-52, 55 (Cott). As far back as antiquity, no society has established same-sex marriage as a cultural norm. Marriage has always been understood to be uniquely concerned with regulating naturally procreative relationships between men and women and providing for the nurture and care of the children who result from those relationships. See Maynard v. Hill, 125 U. S. 190, 211 (1888); Meyer v. Neb., 262 U. S. 390, 399 (1923).

2.

3.

4.

5.

2:12-cv-10285-BAF-MJH Doc # 141 Filed 03/10/14 Pg 4 of 19

Pg ID 3072

Marriage in the United States and Across the Globe 6. Same-sex marriage was first recognized by a United States jurisdiction on November 18, 2003, pursuant to the ruling of the Massachusetts Supreme Judicial Court in Goodridge v. Department of Public Health. See Goodridge v. Dept of Public Health, 440 Mass. 309 (2003). Massachusetts licensed its first same-sex marriages in 2004. See 2/25/14 Hrg Tr. at 6 (Brodzinsky); 2/26/14 Hrg Tr. at 14 (Rosenfeld); 3/6/14 Hrg Tr. at __ (Allen). In many of the states that recognize same-sex marriage, same-sex marriage was imposed by judicial decision. The overwhelming majority of states continue to limit marriage to opposite-sex unions. Currently, four states prohibit samesex civil marriage by statute (Indiana, Pennsylvania, West Virginia and Wyoming) and 29 prohibit it in their constitutions (26 of these states, one of whom is Michigan, also have statutory provisions adopting this language). A majority of states retain Constitutional provisions defining marriage as the union of a man and a woman. See Alabama (Ala. Const. art. I, 36.03), Alaska (Alaska Const. art. 1, 25), Arizona (Ariz. Const. art. XXX, 1), Arkansas (Ark. Const. amend. 83, 1-3), Colorado (Colo. Const. art. II, 31), Florida (Fla. Const. art. I 27), Georgia (Ga. Const. art. I, IV, I), Idaho (Idaho Const. art. III, 28), Kansas (Kan. Const. art. XV, 16), Kentucky (Ky. Const. 233a), Louisiana (La. Const. art. XII, 15), Michigan (Mich. Const. art I, 25), Mississippi (Miss. Const. art. XIV), Missouri (Mo. Const. art. I, 33), Montana (Mont. Const. art. XIII, 7), Nebraska (Neb. Const. art. I, 29), North Carolina (N.C. Const. art. XIV, 6), North Dakota (N.D. Const. art. XI, 28), Ohio (Ohio Const. art. XV, 11), Oklahoma (Okla. Const. art. II, 35), Oregon (Or. Const. art. XV, 5a), South Carolina (S.C. Const. art. XVII, 15), South Dakota (S.D. Const. art. XXI, 9), Tennessee (Tenn. Const. art XI, 18), Texas (Tex. Const. art. I, 32), Utah (Utah Const. art. I, 29), Virginia (Va. Const. art. I, 15-A), Wisconsin (Wis. 4

7.

8.

2:12-cv-10285-BAF-MJH Doc # 141 Filed 03/10/14 Pg 5 of 19

Pg ID 3073

Const. art. XVIII, 13). Four of the states (Oklahoma, Utah, Virginia, and Texas) provisions were ruled unconstitutional by a federal judge. There are pending appeals in all four of these states. 9. Effective 2001, the Netherlands became the first nation to license same-sex marriages. See 3/6/14 Hrg Tr. at __ (Allen); 2/25/14 Hrg Tr. at 6 (Brodzinsky, vol 1).

Marriage in Michigan 10. From the beginning of Michigan statehood in 1846, the legal institution of civil marriage has been understood to refer to the relationship of a man and a woman. Michigan has never recognized same-sex marriage. See 2/25/14 Tr. of Hrg at 9 (Brodzinsky); 2/28/14 Hrg Tr. at 54 (Cott); Mich. Comp. Laws 551.3 and Mich. Comp. Laws 551.4. In 2004, by a vote of 59%, the people of Michigan voted to approve Proposition 04-2, a citizen initiated measure which defined marriage as between one man and one woman. See Mich. Const. art I, 25, also see Initiatives and Referendums under the Constitution of the State of Michigan of 1963, Constitutional Amendments, Proposal 042, p. 10, http://www.michigan.gov/documents/sos/Initia_Ref_Under_C onsti_12-08_339399_7.pdf?20130814121636. The Michigan Legislature, the duly elected representatives of the people, since 2009 have repeatedly elected to uphold and support voters democratically approved constitutional amendment defining marriage as between one man and one woman. In 2009, a bill to permit same-sex marriage was introduced in the Michigan Legislature but not enacted. (H.B. 5588.) And in June and July 2013, same-sex marriage bills have been introduced in the Michigan House and Senate. (H.B. 4909 of 2013, H.B. 4910 of 2013, S.B. 405 of 2013 and S.B. 406 of 2013.) These bills were not adopted.

11.

12.

2:12-cv-10285-BAF-MJH Doc # 141 Filed 03/10/14 Pg 6 of 19

Pg ID 3074

13.

On January 23, 2012, Plaintiffs DeBoer and Rowse, a lesbian couple, filed this lawsuit in federal district court, challenging Michigans adoption law, which prohibited two single people from jointly adopting children. See Doc # 1 (Complaint for Declaratory and Injunctive Relief). In August 2012, this Court invited Plaintiffs to amend their suit to challenge the Marriage Amendment, stating that same-sex marriage was the underlying issue. They did so on September 7, 2012. See Doc # 33 (Motion for Leave to File First Amended Complaint for Declaratory and Injunctive Relief). On March 7, 2013, after hearing arguments in this case, the Court announced that it would delay its ruling pending the outcome of two same-sex marriage cases before the U. S. Supreme Court, U.S. v. Windsor, 113 S. Ct. 2675 (2013) and Hollingsworth v. Perry, 570 U.S. __ (2013). On July 1, 2013, citing the recent Supreme Court decision in Windsor, 113 S. Ct. 2675 (2013), the Court denied the State Defendants motion to dismiss the suit. See Doc # 54 (Opinion and Order denying Motion to Dismiss the Amended Complaint). Following a hearing on October 16, 2013, the Court scheduled trial for February 25, 2014. See Doc # 89 (Opinion and Order Denying Motion for Summary Judgments). Supporters of extending marriage to same-sex couples are currently mobilizing to repeal Michigans Constitutional Amendment through the ballot box in 2016. See MLive, Gay Marriage May Come To A Vote in 2016, http://www.mlive.com/politics/index. Ssf/2013/06/gay_marriage_vote_may_come_to.html. Michigans marriage laws do not reflect or promote improper gender stereotypes or the supremacy of one sex over the other. Indeed, both men and women are treated equally. A man cannot marry a man, and a woman cannot marry a 6

14.

15.

16.

17.

18.

2:12-cv-10285-BAF-MJH Doc # 141 Filed 03/10/14 Pg 7 of 19

Pg ID 3075

woman. See Mich. Comp. Laws 551.3 and Mich. Comp. Laws 551.4. 19. Michigans Constitution and laws reflect an understanding that marriage is distinctly concerned with regulating naturally procreative relationships between a man and a woman, and providing for the nurture and care of the children who result from those relationships. See, e.g., Jackson v. Abercrombie, 884 F. Supp. 2d at 1113; Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1015-1016 (D. Nev. 2012); Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 867, 868 (8th Cir. 2006); Smelt v. County of Orange, 374 F. Supp.2d 861, 880 (C.D. Cal. 2005); Wilson v. Ake, 354 F. Supp. 2d 1298,1308 (M.D. Fla. 2005); In re Kandu, 315 B.R. 123, 145 (Bankr. W.D. Wash. 2004); Standhardt v. Super. Court, 77 P.3d 451, 461-62 (Ariz. Ct. App. 2003); Baehr v. Lewin, 852 P.2d 44, 55-56 (Haw. 1993); Morrison v. Sadler, 821 N.E.2d 15, 24-25 (Ind. App. 2005); Adams v. Howerton, 486 F. Supp. 1119, 1124-25 (C.D. Cal. 1980); Conaway v. Deane, 401 Md. 219, 300-01 (Md. 2007); Baker v. Nelson, 191 N.W.2d 185, 312-13 (Minn. 1971); Hernandez v. Robles, 855 N.E.2d 1, 21 (N.Y. 2006); Matter of Cooper, 187 A.D.2d 128, 133 (N.Y. App. Div. 1993); In re Marriage of J.B. and H.B., 326 S.W.3d 654, 674-75 (Tx. Ct. App. 2010); Anderson v. King County, 138 P.3d 963, 985, 990 (Wash. 2006); Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942). Michigans laws further recognize that the ideal home environment for children is a home where a child is raised with both a mother and a father. Only with opposite-sex marriage is there both a mother and a father to serve as role models for the children, and the potential for the children to be the offspring of married people. See Doc # 71-1 (Brief of Amicus Curiae Michigan Family Forum, p. 3-11). See also, Bowen v. Gillard, 483 U.S. 587, 614 (1987) (Brennan, J. dissenting), (the optimal situation for the child is to have both an involved mother and an involved father.)

20.

2:12-cv-10285-BAF-MJH Doc # 141 Filed 03/10/14 Pg 8 of 19

Pg ID 3076

Child Wellbeing 21. Social science research indicates that, on average, the ideal family structure for a child is a family headed by two biological parents in marriage. See 3/3/14 Hrg Tr. at 34, 3940, 62, 85 (Regnerus); 3/6/14 Hrg Tr. at __ (Allen); 3/4/14 Hrg Tr. at 108 (Price); Mark Regnerus, How Different Are Adult Children of Parents Who Have Same-Sex Relationships? Findings from the New Family Structures Study, Social Science Research, vol. 41, 752-770 (2012). Social science research indicates that, on average, children who grow up with one biological parent and one step-parent experience worse outcomes than children who grow up with both of their biological parents. Same-sex families are similarly situated to step families in that there is a lack of biological connection to at least one parent. See 2/25/14 Hrg Tr. at 16, 57 (Brodzinsky); 3/5/14 Hrg Tr. at 71 (Marks); 3/3/14 Hrg Tr. at 33-34, 63 (Regnerus); 3/4/14 Hrg Tr. at 8 (Regnerus); 3/4/14 Hrg Tr. at 61 (Regnerus, vol. 6); 3/4/14 Hrg Tr. at 102 (Price); 3/5/14 Hrg Tr. at 32-33 (Price); Doc # 71-1 (Brief of Amicus Curiae Michigan Family Forum, pp. 14-15). Social science research indicates that children of same-sex couples have worse outcomes than children of heterosexual married couples. See 3/6/14 Hrg Tr. at __ (Allen); 3/4/14 Hrg Tr. at 88-92, 93-95 (Price); 3/5/14 Hrg Tr. at 3 (Price); 3/5/14 Hrg Tr. at 92-94 (Marks); 3/3/14 Hrg Tr. at 39-40, 62-63, 104-105 (Regnerus); Regnerus, How Different Are Adult Children of Parents Who Have Same-Sex Relationships? Findings from the New Family Structures Study, Social Science Research 41, 752-770 (2012). Social science research indicates that children who do not live with their married, biological parents are at heightened risk for povertyand possibly intergenerational poverty. See 3/3/14 Hrg Tr. at 65 (Regnerus); 3/4/14 Hrg Tr. at 16 (Regnerus, vol. 6); Regnerus, How Different Are Adult 8

22.

23.

24.

2:12-cv-10285-BAF-MJH Doc # 141 Filed 03/10/14 Pg 9 of 19

Pg ID 3077

Children of Parents Who Have Same-Sex Relationships? Findings from the New Family Structures Study, Social Science Research 41, 752-770 (2012). 25. Social science research indicates that children who do not live with their married biological parents are at heightened risk for problems in education and labor force contribution. See 3/4 /14 Hrg Tr. at 77, 88-92 (Price); 3/5/14 Hrg Tr. at 3 (Price); 3/6/14 Hrg Tr. at __ (Allen); 3/3/14 Hrg Tr. at 65 (Regnerus); Douglas Allen, High school graduation rates among children of Same-Sex Households, Review of Economics of the Household 11(4), 635-658 (2013); Regnerus, How Different Are Adult Children of Parents Who Have Same-Sex Relationships? Findings from the New Family Structures Study, Social Science Research 41, 752-770 (2012); Douglas Allen, Catherine Pakaluk and Joseph Price, Nontraditional Families and Childhood Progress Through School: A Comment on Rosenfeld, Demography (2013). Social science research indicates that having both a mother and a father is important for a childs healthy upbringing. The infant-mother relationship is described as unique and as the first love object and prototype of all later love objects. The general consideration of the childs relationship with the mother is considered as a foundation for personality growth. Similarly, the child-father relationship is described as resulting in a range of desirable outcomes in children, including: better peer relationships; fewer behavior problems, lower criminality and substance abuse; higher education and occupational mobility relative to parents; capacity for empathy; more satisfying adult sexual partnerships; and higher self-esteem and life satisfaction. See 2/25 /14 Hrg Tr. at 21 (Brodzinsky); 3/4/14 Hrg Tr. at 97-100 (Price); 3/5/14 Hrg Tr. at 24 (Price); 3/3 /14 Hrg Tr. at 34, 109, 113-114 (Regnerus); Doc # 70-1 (Amicus Curiae Brief of the Michigan Catholic Conference, p. 26). No meaningful conclusions can be drawn from social science research into the effect that being raised by same-sex 9

26.

27.

2:12-cv-10285-BAF-MJH Doc # 141 Filed 03/10/14 Pg 10 of 19

Pg ID 3078

parents has on children because of serious methodological flaws in the research. Fundamentally, because the conclusions are not empirically warranted, any consensus in social science on gay parenting outcomes is premature. As a result, the conclusions drawn (namely that there is no rational grounds for opposing same-sex marriage) is not supported. See 2/25 /14 Hrg Tr. at 14, 21-25 (Brodzinsky); 3/6/14 Hrg Tr. at __ (Allen); 3/4/14 Hrg Tr. at 46-48 (Price); 3/3/14 Hrg Tr. at 107 (Regnerus); 3/5/14 Hrg Tr. at 23-24 (Marks); Douglas Allen, More Heat Than Light: A Critical Assessment of the Same-Sex Parenting Literature, 1995-2013 (2013) which chronologically details design failures and a number of other methodological flaws in approximately 60 gay/lesbian parenting studies. Dr. Allen painstakingly reviews each of these studies and explains why the conclusion that there are no difference in the outcomes of children of same-sex parents and biologically, intact opposite sex parents is simply wrong; Doc # 71-1 (Brief of Amicus Curiae Michigan Family Forum, pp. 11-12, 15-19). 28. The gay and lesbian population is small. The percentage of children raised by same-sex couples is less than one percent. When the data is limited, there are challenges in trying to analyze the results of surveys. See 2/26/14 Hrg Tr. at 40-41 (Rosenfeld); 2/27/14 Hrg Tr. at 41 (Gates); 3/3 /14 Hrg Tr. at 18 (Regnerus). The smaller the sample size, the harder it is to say that there are genuine differences across groups because the margins of error are larger. 2/27/14 Hrg Tr. at 41 (Gates); 3/4/14 Hrg Tr. at 16 (Regnerus, vol. 6). The bulk of research on child development in same-sex households is based on convenient samples. The risk of convenient sampling is that it might not represent the population as a whole. See 2/25/14 Hrg Tr. at 10-11 (Brodzinsky); 3/3/14 Hrg Tr. at 21-23 (Regnerus).

29.

30.

10

2:12-cv-10285-BAF-MJH Doc # 141 Filed 03/10/14 Pg 11 of 19

Pg ID 3079

31.

The newness and complexity of same-sex parenting means social scientists are currently unable to draw meaningful conclusions about its impact on children. See 2/25/14 Hrg Tr. at 27 (Brodzinsky); 3/3/14 Hrg Tr. at 104 (Regnerus); Loren Marks, Same-Sex Parenting and Childrens Outcomes: A Closer Examination of the American Psychological Associations Brief on Lesbian and Gay Parenting, Social Science Research 41, 735-751 (2012); Allen, More Heat Than Light: A Critical Assessment of the Same-Sex Parenting Literature, 1995-2013 (2013); Doc # 71-1 (Brief of Amicus Curiae Michigan Family Forum, pp. 13-15). It is too soon to obtain adequate data on married same-sex couples. In states that allow same-sex marriage, there is no data on how long the marriages of those same-sex couples lasted. See 2/25 /14 Hrg Tr. at 27 (Brodzinsky); 2/27 /14 Hrg Tr. at 42 (Gates). No longitudinal study has been completed on outcomes of children actually raised by married same-sex couples. See 2/25 /14 Hrg Tr. at 6 (Brodzinsky); 3/4/14 Hrg Tr. at 14 (Regnerus, vol. 6); 3/3/14 Hrg Tr. at 104-105 (Regnerus). Social science research evidences mixed results regarding the stability of same sex couples relationships. See 2/25 /14 Hrg Tr. at 9 (Brodzinsky); 2/26/14 Hrg Tr. at 41(Rosenfeld). The largest population based studies do not confirm no differences in child outcomes of same-sex parents. See 3/3/14 Hrg Tr. at 29-31 (Regnerus); 3/4/14 Hrg Tr. at 93-95 (Price); 3/3/14 Hrg Tr. at 105, 107 (Regnerus); 3/6/14 Hrg Tr. at __ (Allen); Allen, More Heat Than Light: A Critical Assessment of the Same-Sex Parenting Literature, 1995-2013 (2013); Regnerus, How Different Are Adult Children of Parents Who Have Same-Sex Relationships? Findings from the New Family Structures Study (2012); Doc # 71-1 (Brief of Amicus Curiae Michigan Family Forum, pp. 19-25).

32.

33.

34.

35.

11

2:12-cv-10285-BAF-MJH Doc # 141 Filed 03/10/14 Pg 12 of 19

Pg ID 3080

Effects of Extending Marriage to Same-Sex Couples 36. 37. The consequences of same-sex marriage on the gender binary are unclear. See 2/28/14 Hrg Tr. at 50 (Cott); Men and women on average bring different gifts to the parenting enterprise; and boys and girls need and tend to benefit from fathers and mothers in different ways. See 2/ 28/14 Hrg Tr. at 55 (Cott); 2/25 /14 Hrg Tr. at 15 (Brodzinsky); 3/4/14 Hrg Tr. at 97-100 (Price); 3/5/14 Hrg Tr. at 24 (Price); Doc # 71-1 (Brief of Amicus Curiae Michigan Family Forum, pp. 3-11). Extending marriage to same-sex couples would weaken in the culture and eradicate in the law the idea that a natural mother married to a natural father is generally the best environment for raising a child. This would likely result in fewer children being raised by their own married parents. See Doc # 70-1 (Amicus Curiae Brief of the Michigan Catholic Conference, p. 23). Extending marriage to same-sex couples would weaken the idea that each parentboth mother and fathermakes a unique and irreplaceable contribution to parenting. This would likely result in fewer men believing it is important for them to be active, hands-on parents of their children. See Doc # 71-1 (Brief of Amicus Curiae Michigan Family Forum, pp. 3-11). Extending marriage to same-sex couples could end or significantly dilute the public socialization of heterosexual young people into a marriage culturethe members of our society that may reproduce naturally. See Doc # 70-1 (Amicus Curiae Brief of the Michigan Catholic Conference, p 22). Extending marriage to same-sex couples would send a message to women that they too have no significant place in the family life, as motherhood is of no particular import to a childs upbringing, even though opponents of traditional 12

38.

39.

40.

41.

2:12-cv-10285-BAF-MJH Doc # 141 Filed 03/10/14 Pg 13 of 19

Pg ID 3081

marriage both recognize and articulate that mothers offer a unique parenting style which benefit their children and women are socialized differently which impacts their parenting styles. See Doc # 71-1 (Brief of Amicus Curiae Michigan Family Forum, pp. 3-11). Evolution of Gays and Lesbians From Past History of Discrimination 42. At present, discrimination against gays and lesbians is far less severe and uncommon than in times past, and growing increasingly rare. See Plaintiffs Exhibit # 51 George Chauncey report dated December 20, 2013. While some gays and lesbians experience private discrimination to some degree, which any group of people can claim, instances of such discrimination are not the norm in Michigan. In fact, the past decade has seen a business trend of increased commitment to policies inclusive of sexual orientation and gender identity/expression. This trend is also observable in some of Michigans largest employers, i.e., healthcare systems, manufacturers, and banks. See Plaintiffs Exhibit # 50, Michigan Department of Civil Rights Report on LGBT Inclusion under Michigan Law. Indeed, gays and lesbians in the past 30 years or so have been the beneficiaries of zealous advocacy with regard to a myriad of issues impacting them in mass media, medicine, psychiatry, psychology, government, and sociology. See Plaintiffs Exhibit # 50, Michigan Department of Civil Rights Report on LGBT Inclusion under Michigan Law; Plaintiffs Exhibit 110, List of organizations supporting the no difference conclusion. See 3/3 /14 Hrg Tr. at 29-31 (Regnerus). Gays and lesbians in Michigan have secured legal protection from discrimination through the political process. Beginning in the 1970s, over 30 local municipalities, where the majority of Michigans population reside, passed local human rights 13

43.

44.

45.

2:12-cv-10285-BAF-MJH Doc # 141 Filed 03/10/14 Pg 14 of 19

Pg ID 3082

ordinances which prohibit discrimination based on sexual orientation or gender identity in employment and housing. See Cities with Legal Protection, Equality Michigan, retrieved October 22, 2013, http://www.equalitymi.org/resources/cities-with-legalprotection.See also Plaintiffs Exhibit # 50, Michigan Department of Civil Rights Report on LGBT Inclusion under Michigan Law. 46. People who do not support same-sex marriage do not necessarily do so based on animus. See 2/28/14 Hrg Tr. At 51-52, 54-55 (Cott). In Michigan, the marriage law is positive, not prohibitory. The opposite-sex requirement has remained unchanged since statehood. Article I, 25 of the Michigan Constitution does not compel any action from homosexual couples. It imposes no penalties or other sanctions upon them. Their relationships are not disturbed in any manner by the law.

47.

Marriage, Procreation, and the Unique and Irreplaceable Contribution of Opposite-Sex Couples 48. Moms and dads are important. Different sexes bring different contributions to parenting. See 2/25/14 Hrg Tr. at 21 (Brodzinsky); 2/28/14 Hrg Tr. at 55 (Cott); 3/4/14 Hrg Tr. at 97-100 (Price); 3/5/14 Hrg Tr. at 24-25, 27-28 (Price). Same-sex couples are different than opposite-sex couples in that only opposite-sex couples have the capacity to procreate naturally; same-sex couples are inherently incapable of doing so. See 2/28/14 Hrg Tr. at 52 (Cott). Mothers tend to be more emotion focused, calming and soothing with their children, with more physical affection offered. They are more linguistically oriented. Fathers are more playful, more boisterous and task oriented in their interactions. See 2/25/14 Hrg Tr. at 15-16 (Brodzinsky); 3/4/14 Hrg Tr. at 97-100 (Price). 14

49.

50.

2:12-cv-10285-BAF-MJH Doc # 141 Filed 03/10/14 Pg 15 of 19

Pg ID 3083

51.

Only opposite-sex couples have the capacity to raise children with both a mother and a father. See 2/25 /14 Hrg Tr. at 51, 55 (Brodzinsky); 3/5/14 Hrg Tr. at 24-25, 27-28 (Price). Humanitys survival depends on opposite-sex couples having and raising their children. Societies that have failed to procreate in sufficient numbers or produce quality offspring become marginalized, overtaken, and eventually cease to exist. See Doc # 70-1 (Amicus Curiae Brief of the Michigan Catholic Conference, p. 20-22). Communities and cultures are harmed when mothers and fathers do not take responsibility for rearing their children. See Regnerus, How Different Are Adult Children of Parents Who Have Same-Sex Relationships? Findings from the New Family Structures Study (2012). Because they lack the natural procreative capacity of opposite-sex relationships, same-sex relationships do not pose the unique benefits and costs to society that follow from the natural procreative capacity of opposite-sex relationships. See Doc # 70-1 (Amicus Curiae Brief of the Michigan Catholic Conference, p. 21); Doc # 70-1 (Amicus Curiae Brief of the Michigan Catholic Conference, p. 22). Many developed nations are now facing low and declining birthrates inadequate to maintain their populations. The fertility rate in the United States is barely at replacement level. A future generation is necessary for a society to survive and to provide social services to the earlier generation. In the United States, from 2006 through 2010, nearly 60% of children were conceived and born into a marriage. See CDC, Key Statistics from the National Survey of Family Growth available at www.cdc.gv/nchs/nsfg/abc_list_b.htm. Today, creating a subsequent generation is still a vital matter of public policy even though this countrys wealth and immigration policies often mask the issue. Hence, the production of children is a 15

52.

53.

54.

55.

2:12-cv-10285-BAF-MJH Doc # 141 Filed 03/10/14 Pg 16 of 19

Pg ID 3084

major social benefit of marriage. See Doc # 70-1 (Amicus Curiae Brief of the Michigan Catholic Conference, p. 23). 56. The universal human condition is procreation, and the essential purpose of the institution of marriage has been to encourage successful procreation and child-rearing. See Doc # 70-1 (Amicus Curiae Brief of the Michigan Catholic Conference, p. 22-23). The relationships of married, opposite-sex couples are, on average, more stable than the relationships of unmarried, same-sex couples. See 3/3/14 Hrg Tr. at 55-56, 75, 77-78, 7980, 85, 106 (Regnerus); 3/4/14 Hrg Tr. at 103-107 (Price); 3/5/14 Hrg Tr. at 53-54 (Price). There is a natural and mutually beneficial bond between children and their biological parents. See 3/3/14 Hrg Tr. at 62 (Regnerus). Children desire to know and have a relationship with their biological parents. See 2/25 /14 Hrg Tr. at 75-76 (Brodzinsky). The traditional institution of marriage increases the probability that each child will have a legally recognized mother and father. See Doc # 70-1 (Amicus Curiae Brief of the Michigan Catholic Conference, p. 23). Allowing all opposite-sex couples to marry promotes a stable framework for raising any children that might result when a couple that does not intend to have children has an accidental or intentional change in plans. See Doc # 70-1 (Amicus Curiae Brief of the Michigan Catholic Conference, p. 22-23).

57.

58.

59.

60.

61.

16

2:12-cv-10285-BAF-MJH Doc # 141 Filed 03/10/14 Pg 17 of 19

Pg ID 3085

Adoption in Michigan 62. In 1945, Michigan amended its adoption law, Mich. Comp. Laws 710.24, to include language that limits adoption to single persons or married couples. The law remained essentially the same until January 2013, when it was amended to permit a married individual to adopt without his or her spouse in limited circumstances. These limited circumstances are where the failure of the other spouse to join in the adoption is excused by the court for good cause shown or in the best interests of the child. Mich. Comp. Laws 710.24. In 2005, 2007, 2009, and 2011, there have been a number of proposals in the Michigan Legislature to allow second-parent adoption, but no legislation has been enacted. See H.B. 5399 of 2005, H.B. 4259 of 2007, S.B. 666 of 2007, H.B. 4131 of 2009, H.B. 4249 of 2011, and S.B. 0167 of 2011. These bills can be obtained from the Michigan Legislature web site at http://www.legislature.mi.gov/(S(yzzalz45g04uro45cfum0245 ))/mileg.aspx?page=Bills. Last year, in 2013, second-parent adoption bills have again been reintroduced in the Michigan House and Senate (H.B. 4060 of 2013, S.B. 457 of 2013), but, again, have not been adopted. Under Michigan law, adoption is not a right; it is a statutory privilege. In re Adams, 189 Mich. App. 540, 542; 473 N.W.2d 712 (1991). Unlike biological parentage, which precedes and transcends formal recognition by the state, adoption is wholly a creature of the State. Lindley v. Sullivan, 889 F.2d 124, 130 (7th Cir. 1989) (Because of its statutory basis, adoption differs from natural procreation in a most important and striking way.). Both Plantiffs DeBoer and Rowse, an unmarried same-sex couple, have legally adopted children in Michigan. See Doc # 1 (Complaint for Declaratory and Injunctive Relief). 17

63.

64.

65.

2:12-cv-10285-BAF-MJH Doc # 141 Filed 03/10/14 Pg 18 of 19

Pg ID 3086

66.

Michigans limitation on adoption by multiple unmarried couples recognizes the states legitimate interest in promoting the traditional family model and an understanding that there is no fundamental right to adopt. See In re Adams, 189 Mich. App. at 544. Respectfully submitted, Bill Schuette Attorney General Kristin M. Heyse Assistant Attorney General Attorneys for State Defendants Mich. Dept of Attorney General Health, Education & Family Services Division P.O. Box 30758 Lansing, MI 48909 (517) 373-7700 P64353
/s/ Kristin M. Heyse

Dated: March 10, 2014

18

2:12-cv-10285-BAF-MJH Doc # 141 Filed 03/10/14 Pg 19 of 19

Pg ID 3087

CERTIFICATE OF SERVICE I hereby certify that on March 10, 2014, I electronically filed the above document with the Clerk of the Court using the ECF System, which will provide electronic copies to counsel of record.
/s/ Kristin M. Heyse

Kristin M. Heyse Assistant Attorney General Attorneys for State Defendants Mich. Dept of Attorney General Health, Education & Family Services Division P.O. Box 30758 Lansing, MI 48909 (517) 373-7700 P64353

19