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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION APRIL DEBOER, et al, Plaintiffs, v RICHARD SNYDER, et al Defendants. MAG. MICHAEL J. HLUCHANIUK Civil Action No. 12-cv-10285 HON. BERNARD A. FRIEDMAN

Dana M. Nessel (P51346) Attorney for Plaintiffs 645 Griswold Street, Suite 3060 Detroit, MI 48226 (313) 556-2300 dananessel@hotmail.com Kristin M. Heyse (P64353) Tonya C. Jeter (P55352) Attorneys for State Defendants Mich. Dep’t 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 jetert@michigan.gov

Carole M. Stanyar (P34830) Attorney for Plaintiffs 682 Deer Street Plymouth, MI 48170 (313) 963-7222 cstanyar@wowway.com 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 Street, Suite 200 Royal Oak, MI 48067 (248) 398-9800 ajohnson@pittlawpc.com mpitt@pittlawpc.com brivers@pittlawpc.com ____________________________/

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STATE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT UNDER FED. R. CIV. P. 56 Bill Schuette Attorney General Kristin M. Heyse Tonya C. Jeter Attorneys for State Defendants Mich. Dep’t of Attorney General Health, Education & Family Services Division P.O. Box 30758 Lansing, MI 48909 heysek@michigan.gov jetert@michigan.gov P64353 P55352 Dated: August 14, 2013

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STATE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Defendant Michigan Governor Rick Snyder and Defendant Michigan Attorney General Bill Schuette (collectively “State Defendants”) move for summary judgment under Federal Rule of Civil Procedure 56. Under Rule 56(c), “summary judgment is proper ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). On August 12, 2013, State Defendants sought concurrence pursuant to Local Rule 7.1(a) from Plaintiffs’ counsel, which was denied, necessitating this motion. For the reasons set forth below, State Defendants request that this Court grant their Motion for Summary Judgment. Respectfully submitted, Bill Schuette Attorney General

/s/Kristin M. Heyse Tonya C. Jeter Attorneys for State Defendants
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Mich. Dep’t of Attorney General Health, Education & Family Services Division P.O. Box 30758 Lansing, MI 48909 heysek@michigan.gov jetert@michigan.gov P64353 P55352

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CERTIFICATE OF SERVICE (E-FILE) I hereby certify that on August 14, 2013, I electronically filed the above document(s) with the Clerk of the Court using the ECF System, which will provide electronic copies to counsel of record. /s/ Kristin M. Heyse Assistant Attorney General Attorney for State Defendants Health, Education & Family Services Division P.O. Box 30758 Lansing, MI 48909 (517) 373-7700 heysek@michigan.gov P64353

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION APRIL DEBOER, et al, Plaintiffs, v RICHARD SNYDER, et al Defendants. MAG. MICHAEL J. HLUCHANIUK Civil Action No. 12-cv-10285 HON. BERNARD A. FRIEDMAN

Dana M. Nessel (P51346) Attorney for Plaintiffs 645 Griswold Street, Suite 3060 Detroit, MI 48226 (313) 556-2300 dananessel@hotmail.com Kristin M. Heyse (P64353) Tonya C. Jeter (P55352) Attorneys for State Defendants Mich. Dep’t 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 jetert@michigan.gov

Carole M. Stanyar (P34830) Attorney for Plaintiffs 682 Deer Street Plymouth, MI 48170 (313) 963-7222 cstanyar@wowway.com 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 Street, Suite 200 Royal Oak, MI 48067 (248) 398-9800 ajohnson@pittlawpc.com mpitt@pittlawpc.com brivers@pittlawpc.com ____________________________/

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STATE DEFENDANTS’ BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT UNDER FED. R. CIV. P. 56 Bill Schuette Attorney General Kristin M. Heyse Tonya C. Jeter Attorneys for State Defendants Mich. Dep’t of Attorney General Health, Education & Family Services Division P.O. Box 30758 Lansing, MI 48909 heysek@michigan.gov jetert@michigan.gov P64353 P55352 Dated: August 14, 2013

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TABLE OF CONTENTS Page Table of Contents .................................................................................... iii Index of Authorities................................................................................... v Concise Statement of Issues Presented .................................................... x Controlling or Most Appropriate Authority .............................................. x Introduction ............................................................................................... 1 Statement of Facts .................................................................................... 3 Relevant factual background. .......................................................... 3 Michigan law does not allow multiple unmarried persons to make a joint adoption.............................................................. 4 Michigan law recognizes marriage as a civil contract between a man and a woman.................................................. 5 Argument ................................................................................................... 8 I. This Court should decline Plaintiffs’ invitation to judicially define and regulate Michigan’s marriage and adoption laws. ........ 8 A. State Defendants are entitled to summary judgment because Plaintiffs fail to establish that the Michigan Marriage Amendment violates their equal-protection or due-process rights. ................................................................ 10 1. Baker v. Nelson and its progeny control this case and dictate that Michigan’s Marriage Amendment is constitutional. ...................................... 10

B.

Michigan’s Marriage Amendment does not violate the Equal Protection Clause. ...................................................... 11

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1. 2. 3.

There is no fundamental right to same-sex marriage. ...................................................................... 12 Michigan’s Marriage Amendment does not target a suspect class. ............................................................. 15 Classifications based on sexual orientation are subject to rational basis review under binding Sixth Circuit precedent. ............................................... 16 Michigan has several rational-bases for recognizing opposite-sex marriage. ............................. 18

4. II.

Plaintiffs fail to establish that the Michigan adoption code violates their equal-protection rights. ........................................... 25 A. B. Michigan’s Adoption Code. .................................................... 25 Michigan’s Adoption Code does not violate the Equal Protection Clause because it is rationally related to the State’s interest in promoting the traditional family. ........... 27

Conclusion and Relief Requested ............................................................ 35 Certificate of Service (e-file) .................................................................... 36

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INDEX OF AUTHORITIES Page

Cases Adams v. Howerton, 486 F. Supp 1119 (C.D. Cal. 1980) ....................................................... 20 Andersen v. King Cnty., 158 Wn.2d 1 (Wash. 2006) ............................................................ 14, 20 Baker v. Nelson, 409 U.S. 810 (1972) .................................................................... 1, 10, 20 Bell v. Ohio State University, 351 F.3d 240 (6th Cir. 2003). ................................................................ 8 Bench Billboard Co v. City of Cincinnati, 675 F.3d 974 (6th Cir. 2012) ................................................................ 12 Breck v. Michigan, 203 F.3d 392 (6th Cir. 2000) ................................................................ 17 Celotex Corp. v. Catrett, 477 U.S. 323 (1986) ............................................................................ 7, 8 Citizens for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006) .......................................................... 20, 22 City of Eastlake v. Forest City Enters, Inc., 426 U.S. 668 (1976) .............................................................................. 24 Conaway v. Deane, 932 A.2d 571 (Md. 2007) ...................................................................... 20 Craig v. Boren, 429 U.S. 190 (1976) .............................................................................. 16 Dandridge v. Williams, 397 U.S. 471 (1970) .............................................................................. 17 v

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Davis v. Prison Health Services, 679 F.3d 433 (6th Cir. 2012) ................................................................ 17 F.C.C. v. Beach Communications, Inc., 508 U.S. 307 (1993) ........................................................................ 17, 30 Firestone v. Cleveland Trust Co., 654 F.2d 1212 (6th Cir. 1981) ................................................................ 9 Frontiero v. Richardson, 411 U.S. 677 (1973) .............................................................................. 16 Goodridge v. Dep’t of Pub. Health, 798 N.E.2d at 987 (Cordy, J., dissenting) ...................................... 14, 24 Hadix v. Johnson, 230 F.3d 840 (6th Cir. 2000) ................................................................ 20 Heller v. Doe, 509 U.S. 312 (1993) .................................................................. 17, 21, 34 Hernandez v. Robles, 805 N.Y.S.2d 354 (N.Y. App. Div. 18 2005), aff’d 7 N.Y.3d 338 (2006) .................................................................................................... 19 Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) ..................................................... 6, 14, 20, 29 In re Adams, 189 Mich. App. 540; 473 N.W.2d 712 (1991) ........................... 25, 28, 34 In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004)........................................ 14, 20 In re Marriage of J.B. and H.B., 326 S.W.3d 654 (Tx. Ct. App. 2010) ..................................................... 20 In re Winship, 397 U.S. at 385 (Black, J., dissenting) ................................................. 34 Jackson v. Abercrombie, 2012 U.S. Dist. LEXIS 111376 (D. Haw. Aug. 8, 2012) ................................................................................. passim vi

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Johnson v. Robison, 415 U.S. 361 (1974) .............................................................................. 21 Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356 (1973) .............................................................................. 21 Lindley v. Sullivan, 889 F.2d 124 (7th Cir. 1989) ................................................................ 25 Lofton v. Sec’y of the Dep’t of Children & Family Serv., 358 F.3d 804 (11th Cir. 2004) .................................................. 26, 30, 32 Massachusetts v. United States Dep’t of HHS, 682 F.3d 1 (1st Cir. 2012) ..................................................................... 11 McCarty v. McCarty, 453 U.S. 210 (1981) ................................................................................ 9 McLaughlin v. Cotner, 193 F.3d 410 (6th Cir. 1999) .................................................................. 8 Michael H. v. Gerald D., 491 U.S. 110 (1989) .............................................................................. 28 Minnesota v. Clover Leaf Creamery, 449 U.S. 456 (1981) .............................................................................. 34 Miss. Univ. for Women v. Hogan, 458 U.S. 718 (1982) .............................................................................. 16 Morrison v. Sadler, 821 N.E.2d 15 (Ind. App. 2005) ...................................................... 20, 23 Perry v Hollingsworth, 123 S. Ct 2652 (2013) ........................................................................... 11 Popovici v. Agler, 280 U.S. 379 (1930) ................................................................................ 9 Reed v. Reed, 404 U.S. 71 (1971) ................................................................................ 16 vii

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Romer v. Evans, 517 U.S. 620 (1996) .............................................................................. 17 Scarbrough v. Morgan County Bd. of Educ., 470 F.3d 250 (6th Cir. 2006) ................................................................ 17 Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974) .................................................. 20 Smelt v. County of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005) .................................................. 14 Standhardt v. Super. Ct., 77 P.3d 451 (Ariz. Ct. App. 2003)................................................... 20, 23 TriHealth Inc. v. Bd Of Comm’rs, 430 F.3d 783 (6th Cir. 2005) ................................................................ 12 Troxel v. Granville, 530 U.S. 57 (2000) ................................................................................ 26 United States v. Juvenile Male, 670 F.3d 999 (9th Cir. 2012) ............................................................... 13 United States v. Windsor, 133 S. Ct. 2675 (2013) ................................................................. passim Vance v. Bradley, 440 U.S. 93 (1979) ................................................................................ 17 Washington v. Glucksberg, 521 U.S. 702 (1997) .............................................................................. 13 Wilson v. Ake, 354 F. Supp. 2d 1298 at 1307 (M.D. Fla. 2005) ............................. 14, 20 Statutes Mich. Comp. Laws § 710.24 ............................................................ 3, 4, 28 Rules viii

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Fed. R. Civ. P. 56(a)................................................................................... 7 Constitutional Provisions Mich. Const. 1963, art. I, § 25 ............................................................... 3, 6

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CONCISE STATEMENT OF ISSUES PRESENTED 1. The subjects of adoption and marriage are ones which are within the exclusive power of Michigan to define and regulate. Federal courts have traditionally declined to interject themselves into cases involving adoption and marriage—domestic-relations matters—subject to state law. Should this Court therefore also refrain from interjecting itself into this matter and allow the will of the people of the State of Michigan to stand? Michigan’s constitutional amendment defining marriage as between one man and one woman does not violate Plaintiffs’ equal-protection or due-process rights. Since their claims do not involve a fundamental right or a suspect class, Plaintiffs’ claims are subject to rational-basis review. Among other articulated reasons, Michigan’s marriage law fosters the State’s legitimate interest in promoting responsible natural procreation, which in turn promotes raising children in an optimal home environment with both a mother and father. Are Michigan marriage laws rationally related to a legitimate government interest? Michigan’s Adoption Code treats Plaintiffs the same as any other unmarried couple. Further, Michigan has a legitimate interest in encouraging a stable and nurturing environment of its adopted children. To that end, Michigan’s longstanding adoption system seeks to ensure predictability and supports the State’s overall policy of recognizing the importance of the traditional family. Have Plaintiffs failed to establish that the application of the Michigan Adoption Code violates their equal-protection rights?

2.

3.

CONTROLLING OR MOST APPROPRIATE AUTHORITY Authority: United States v. Windsor, 133 S. Ct. 2675 (2013), Baker v. Nelson, 409 U.S. 810 (1972). x

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INTRODUCTION Defining and regulating the area of domestic relations has long been regarded as a virtually exclusive province of the states. Indeed, the Supreme Court just affirmed this long-established precedent in United States v. Windsor, 133 S. Ct. 2675 (2013), where the Court recognized that “[b]y history and tradition the definition and regulation of marriage . . . has been treated as being within the authority and realm of the separate States.” Id. at 2689–90. Notwithstanding that very clear affirmation, Plaintiffs seek to challenge Michigan’s authority to define and regulate marriage and adoption. Given the long-standing precedent to the contrary, their attempt to circumvent the legislative process and disrupt the will of the people of the State of Michigan must be rejected. But even if this Court chooses to delve into matters that have traditionally been reserved to the states, Plaintiffs’ constitutional claims fail for two primary reasons. First, Plaintiffs’ equal-protection and due-process challenges to Michigan’s Marriage Amendment are barred by the Supreme Court’s decision in Baker v. Nelson, 409 U.S. 810 (1972), and this Court is bound to follow that precedent, which 1

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dealt with challenges to state law, and is therefore directly on point. Further, under rational-basis review—the review that this Court must apply to Plaintiffs’ claims—it is clear that Michigan’s Marriage Amendment furthers the State’s legitimate interests in supporting natural procreation and in promoting optimal parenting. Likewise, Michigan’s Adoption Code—and its prohibition on allowing multiple unmarried persons to adopt—furthers the State’s interests in promoting the best interests of children, family stability, and protecting the traditional family model. While Plaintiffs may disagree with—or even disapprove of—these State interests, such disagreement does not mean that laws designed to further them are irrational or unconstitutional. Indeed, Plaintiffs have not, and cannot, negate these rational bases. Therefore, State Defendants are entitled to summary judgment as a matter of law.

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STATEMENT OF FACTS Relevant factual background. Plaintiffs, April DeBoer and Jayne Rowse, are an unmarried couple1 residing in Hazel Park, Michigan (Amended Complaint). (AC, ¶ 8.) In February 2007, Ms. DeBoer and Ms. Rowse participated in a commitment ceremony. (AC, ¶ 15.) In November 2009, Ms. Rowse, as a single person, legally adopted child N, born January 25, 2009. (AC, ¶ 11.) Sometime in 2010, Ms. Rowse, again as a single person, legally adopted another child, J, born November 9, 2009. (AC, ¶ 12.) In April 2011, Ms. DeBoer, as a single person legally adopted child R, born February 1, 2010. (AC, ¶ 10.) Ms. DeBoer and Ms. Rowse would like to jointly adopt N, J, and R. (AC, ¶¶ 13-14.) They allege that Michigan’s adoption law, Mich. Comp. Laws § 710.24, lacks a rational basis and violates the U.S. Constitution’s Equal Protection Clause because it results in the disparate treatment of children of unmarried parents and of unmarried parents seeking second-parent adoption. (AC, ¶ 212.) In addition, they Plaintiffs have not been denied any marriage license, but apparently claim that such an attempt would be denied since they are a same-sex couple.
1

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allege that Michigan’s Constitutional Amendment regarding marriage, Mich. Const. 1963, art. I, § 25, lacks a rational basis and violates the U.S. Constitution’s Equal Protection Clause because it results in the disparate treatment of same-sex, unmarried couples. (AC, ¶¶ 32-33.) They further allege that Michigan’s Marriage Amendment violates the U.S. Constitution’s Due Process Clause because it unconstitutionally burdens the exercise of fundamental rights. (AC, ¶ 34.)

Michigan law does not allow multiple unmarried persons to make a joint adoption. 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.2 In recent years (2005, 2007, 2009, and 2011),3 there have been a number of proposals in the Michigan Legislature to allow second-parent 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. 3 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 4
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adoption, but no legislation has been enacted. This year, 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. Thus, while there have been numerous reviews of—and even an amendment to—Michigan’s adoption law and a number of attempts to change the laws to include second-parent adoptions, Michigan’s citizens, through their elected legislature, have decided to maintain the current law on adoption. Michigan law recognizes marriage as a civil contract between a man and a woman. Throughout history and across cultures “marriage” has been understood and defined to mean a union between one man and one woman. As one court recently explained: Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted.

http://www.legislature.mi.gov/(S(yzzalz45g04uro45cfum0245))/mileg.asp x?page=Bills. 5

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Hernandez v. Robles, 855 N.E.2d 1, 8 (N.Y. 2006). Indeed, the U.S. Supreme Court just recognized that “marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization.” Windsor, 133 S. Ct. at 2689. To that end, on November 2, 2004, the citizens of the State of Michigan voted to approve an amendment4 to the Michigan Constitution that provides: To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose. Mich. Const., art. I, § 25. With this constitutional amendment, Michigan joined 30 states that legally recognize only opposite-sex unions in their state constitutions.5

The amendment passed with 59% of Michigan’s electorate voting yes. Secretary of State, “Initiatives and Referendums under the Constitution of the State of Michigan of 1963, Constitutional Amendments, Proposal 04-2, p. 10 http://www.michigan.gov/documents/sos/Initia_Ref_Under_Consti_1208_339399_7.pdf?20130814121636 5 “List of U.S. State Constitution amendments banning same -sex unions by type.” 6
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In 2009,6 a bill to permit same-sex marriage was introduced in the Michigan Legislature but not enacted. And in June and July of 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.) To date, these bills have not been adopted. Michigan has never recognized a same-sex marriage, and the citizens of this State have repeatedly decided to reaffirm the traditional definition of marriage. STANDARD OF REVIEW In general, the purpose of summary judgment is to identify and dispose of factually unsupported claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 323, 324 (1986). Summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When evaluating a motion for summary judgment, the court must construe all evidence and reasonable inferences drawn http://en.wikipedia.org/w/index.php?title=List_of_U.S._state_constitutio nal_amendments_banning_same-sex_unions_by_type. See H.B. 5588 of 2009. Again, this bill can be obtained from the Michigan Legislature web site at http://www.legislature.mi.gov/(S(yzzalz45g04uro45cfum0245))/mileg.asp x?page=Bills.
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therefrom in the light most favorable to the nonmoving party. Bell v. Ohio State University, 351 F.3d 240, 247 (6th Cir. 2003). Summary judgment will be granted against a party who fails to demonstrate facts sufficient to establish an element essential to his case when that party will ultimately bear the burden of proof at trial. Celotex, 477 U.S. at 322. ARGUMENT I. This Court should decline Plaintiffs’ invitation to judicially define and regulate Michigan’s marriage and adoption laws. The regulation of marriage and adoption is reserved to the states. McLaughlin v. Cotner, 193 F.3d 410, 412-413 (6th Cir. 1999) (finding that family law and domestic relations are purely within the province of the respective states). The Supreme Court has repeatedly—and as recently as a few months ago—recognized this very important principle. Windsor, 133 S. Ct. at 2689–90 (making clear that “[b]y history and tradition the definition and regulation of marriage . . . [is] within the authority and realm of the . . . [s]tates.”); see also McCarty v. McCarty, 453 U.S. 210, 220 (1981); Popovici v. Agler, 280 U.S. 379 (1930). Therefore, while the power to regulate family law is not without 8

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limitations, it is within the exclusive province of the states. Windsor, 133 S. Ct. at 2689–90; id. at 2691 (“The definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the ‘[p]rotection of offspring, property interests, and the enforcement of marital responsibilities.’ ‘[T]he states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce . . . [and] the Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce.”) (citations omitted). With this lawsuit, Plaintiffs attempt to rewrite Michigan’s legislative policy and law by way of this Court. Simply put, this Court is being asked to intrude on State power—a violation of the Constitution because it disrupts the federal balance. Firestone v. Cleveland Trust Co., 654 F.2d 1212, 1215 (6th Cir. 1981). The adoption process and defining the marriage is entirely a creature of state law. Because, the regulation of marriage and parental rights involving adoption have historically been governed by the states, and because these laws do not violate equal protection or due process, this Court should decline Plaintiffs’ invitation to judicially define and regulate 9

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Michigan’s marriage and adoption laws and, instead, allow the will of the people of the State of Michigan to stand. A. State Defendants are entitled to summary judgment because Plaintiffs fail to establish that the Michigan Marriage Amendment violates their equal-protection or due-process rights. 1. Baker v. Nelson and its progeny control this case and dictate that Michigan’s Marriage Amendment is constitutional.

In Baker, 409 U.S. 810, the U.S. Supreme Court ruled that neither the Due Process Clause nor the Equal Protection Clause bars the states from limiting marriage to one man and one woman. And later courts, following Baker, have rejected the same arguments advanced by Plaintiffs in this case. For example, the First Circuit Court of Appeals held that “Baker is precedent binding on us . . . [and] limit[s] the arguments to ones that do not presume or rest on a constitutional right to same-sex marriage.” Massachusetts v. United States Dep’t of HHS, 682 F.3d 1, 3 (1st Cir. 2012), petition for cert. filed 6/29/12.7 Likewise, the Hawaii District Court in Jackson v. Abercrombie, 2012 U.S. Dist. LEXIS 111376 (D. Haw. Aug. 8, 2012) followed Baker’s holding when it State Defendants do not necessarily agree with the entire holding of Massachusetts v. United States Department of HHS.
7

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dismissed a similar challenge to Hawaii’s marriage laws. Finally, even in the most recent decisions involving same-sex couples issued by the Supreme Court—Windsor, 133 S. Ct. 2675 and Perry v Hollingsworth, 123 S. Ct 2652 (2013)—the Supreme Court did not repudiate the Baker decision, leaving that precedent legally binding. Further, Windsor dealt with the federal government’s limited authority in the area of domestic law, not with (as Baker did) a state’s broad authority on the topic. Thus, because Baker is both binding and dispositive of this case, Plaintiffs’ equal-protection and due-process claims fail as a matter of law. B. Michigan’s Marriage Amendment does not violate the Equal Protection Clause.

The Equal Protection Clause “‘prohibits discrimination by government which either burdens a fundamental right, targets a suspect class, or intentionally treats one differently than others similarly situated without any rational basis for the difference.’” Bench Billboard Co v. City of Cincinnati, 675 F.3d 974, 986 (6th Cir. 2012) (quoting TriHealth Inc. v. Bd Of Comm’rs, 430 F.3d 783, 788 (6th Cir. 2005)). Here, even if this Court disagrees that Baker controls the 11

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outcome of this case, Plaintiffs’ equal-protection and due-process8 claims still fail because Michigan’s Marriage Amendment does not burden a fundamental right, it does not target a suspect class, and it is rationally related to legitimate State interests. 1. There is no fundamental right to same-sex marriage.

There is no dispute that there is a fundamental right to marry. But there is no fundamental right to marry a person of the same sex. See Windsor, 133 S. Ct. at 2689 (recognizing that there is “no doubt” that “most people” “throughout the history of civilization” thought it “essential to the very definition of [marriage] and to its role and function” that it was “between a man and a woman”). Plaintiffs’ very general and unsupported allegation that same-sex marriage is a fundamental right entitled to protection must be rejected. To be deemed a fundamental right, the right must be “deeply rooted in this

While this section focuses primarily on Plaintiffs’ equal-protection challenge to the Marriage Amendment Act, the arguments set forth herein also apply to Plaintiffs’ claim that the Michigan’s Marriage Amendment violates the U.S. Constitution’s Due Process Clause because it unconstitutionally burdens the exercise of fundamental rights. (AC, ¶ 34.)
8

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Nation’s history and tradition” and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed.” Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997). Our Nation’s history, legal traditions, and practices thus provide the crucial guideposts for responsible decision-making that direct judicial restraint. Id. at 721 (citations and internal quotation marks omitted). Relatively few “fundamental” rights have been recognized: Those [fundamental] rights . . . include the right to marry, to have children, to direct the education and upbringing of one’s children, to marital privacy, to use contraception, to bodily integrity, to abortion, and to refuse unwanted life saving medical treatment. United States v. Juvenile Male, 670 F.3d 999, 1012 (9th Cir. 2012). The right of same-sex couples to marry is not “deeply rooted in this Nation’s history and tradition” and is therefore not a fundamental right. Windsor, 133 S. Ct. at 2689 (“[U]ntil recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire” to marry.); In re Kandu, 315 B.R. 123, 140 (Bankr. W.D. Wash. 2004); Hernandez, 855 N.E.2d at 10 (“[Same-sex marriage] has not even been asserted until relatively recent times.”). Until 2003, no state recognized same-sex marriages. Smelt v. County of Orange, 374 F. Supp. 2d 861, 878 (C.D. Cal. 2005). 13

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It is on this basis that numerous courts have held that the right to legal recognition of a same-sex marriage is not a fundamental right. See Jackson, 2012 U.S. Dist. LEXIS 111376 at *86; Smelt, 374 F. Supp. 2d at 879; Wilson v. Ake, 354 F. Supp. 2d 1298 at 1307 (M.D. Fla. 2005); Andersen v. King Cnty., 158 Wn.2d 1 (Wash. 2006); Goodridge v. Dep’t of Pub. Health, 798 N.E.2d at 987 (Cordy, J., dissenting) (“While the institution of marriage is deeply rooted in the history and traditions of our country and our State, the right to marry someone of the same sex is not.”). The traditional understanding of marriage as the union of one man and one woman is deeply rooted in this Nation’s history. The majority of states continue to adhere to the traditional definition of marriage as a union between a man and a woman. Absent any history or tradition of same-sex marriage, there is no basis for finding that arrangement to be a fundamental constitutional right. Plaintiffs’ arguments blur the distinction between saying that same-sex marriage is a fundamental right and arguing that it ought to be a fundamental right. The citizens of this State and their elected representatives in the Michigan Legislature, however, have decided to 14

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maintain the traditional understanding of marriage. And they are well within their constitutional rights to do so. Windsor, 133 S. Ct. at 2691 (recognizing that the “‘regulation of domestic relations’ is ‘an area that has long been regarded as a virtually exclusive province of the States” and that “the Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce”). Contrary to Plaintiffs’ arguments, civil marriage of same-sex couples is not a fundamental right under either the Michigan Constitution or the U.S. Constitution.

2.

Michigan’s Marriage Amendment does not target a suspect class.

Likewise, Plaintiffs cannot allege that the Michigan Marriage Amendment creates any impermissible classification based on their sex. The reason for this is simple. Men and women enjoy equal rights to marry a person of the opposite sex; neither sex is advantaged or disadvantaged in this consideration. Each sex is equally prohibited from precisely the same conduct i.e., marriage to a person of the same sex. The Supreme Court has never strayed from the baseline rule that to constitute sex-based discrimination, a law must subject men and 15

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women to disparate treatment. See Miss. Univ. for Women v. Hogan, 458 U.S. 718, 718-19 (1982) (law excluded men from attending nursing school); Craig v. Boren, 429 U.S. 190, 191-92 (1976) (women allowed to buy beer at lower age than men); Frontiero v. Richardson, 411 U.S. 677, 678-79 (1973) (law imposed higher burden on females than males to establish spousal dependency); Reed v. Reed, 404 U.S. 71, 73 (1971) (law gave automatic preference of men over women to administer estates). Accordingly, because Michigan’s marriage laws do not discriminate between men and women, any sex discrimination claim must fail. 3. Classifications based on sexual orientation are subject to rational basis review under binding Sixth Circuit precedent.

Additionally, binding Sixth Circuit precedent establishes that classifications based on sexual orientation do not constitute a suspect class. Thus, Plaintiffs’ equal-protection challenge is subject to rationalbasis review. Davis v. Prison Health Services, 679 F.3d 433, 438 (6th Cir. 2012); see also Scarbrough v. Morgan County Bd. of Educ., 470 F.3d 250, 261 (6th Cir. 2006).

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Under rational-basis review, legislation is presumed valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate State interest. Romer v. Evans, 517 U.S. 620 (1996). This standard applies to most social and economic legislation. Dandridge v. Williams, 397 U.S. 471 (1970). Whether the Legislature was “‘unwise in not choosing a means more precisely related to its primary purposes is irrelevant.’” Breck v. Michigan, 203 F.3d 392, 396 (6th Cir. 2000), (quoting Vance v. Bradley, 440 U.S. 93, 109 (1979)). A legislative classification is accorded a strong presumption of validity and “must be upheld against equal protection challenge if there is any reasonably conceivable set of facts that could provide a rational basis for the classification.” Heller v. Doe, 509 U.S. 312, 320 (1993)(quotation omitted). This is true “even if the law . . . works to the disadvantage of a particular group, or if the rationale for it seems tenuous.” Romer v. Evans, 517 U.S. at 632; see also F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 313-14 (1993).

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4.

Michigan has several rational-bases for recognizing opposite-sex marriage.

Courts have concluded that at least three legitimate interests for the opposite-sex definition of marriage satisfy rational-basis review. They are: providing the optimal childrearing environment, which includes role model of both sexes, promoting and fostering naturally procreative relationships into stable unions, and cautiously experimenting with social change which could result in the redefinition of marriage and could have serious unintended consequences. No other relationship is like that of the marriage of one man and one woman. Its distinct attributes make it uniquely suited to the rearing of children. Only in traditional marriage does the marriage contract reflect the complementarity of the sexes with the natural capacity to bear children, provide a role model of the identity of manhood and womanhood to the children, and enable any children born of the marriage to have a biological relationship to each parent. In traditional marriage, a child’s biological parents might also be the child’s legal parents.

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Additionally, traditional marriage encourages biological parents to remain together for the sake of their children. The hope is that the availability of marriage makes it more likely that unintended children, among the weakest members of society, will be cared for. The laws of marriage thus generally reflect the state’s interest in the welfare of children, their protection, and their well-being. See Hernandez v. Robles, 805 N.Y.S.2d 354, 360 (N.Y. App. Div. 18 2005), aff’d 7 N.Y.3d 338 (2006). Traditional marriage encourages the two biological parents to care for their children in tandem. As this shows, Michigan’s primary justification for legally recognizing marriage between one man and one woman is that it promotes the best interests of children. This definition, which has existed from time immemorial, is not rooted in animus toward same-sex couples or even an unwarranted stereotype that same-sex couples cannot provide a loving setting for children. They clearly can. Michigan’s definition simply acknowledges the reality that same-sex relationships are different in that they lack the natural capacity to bear children and consequently lack the ability to provide a biologically connected role model of both womanhood and manhood. 19

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A number of courts have recognized that these compelling interests—the very same interests that support Michigan’s Marriage Amendment Act—satisfy rational-basis review. See Jackson, 2012 U.S. Dist. LEXIS 111376 at *125-50; Citizens for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006); Wilson , 354 F. Supp. 2d 1298; In re Kandu, 315 B.R. 123; Adams v. Howerton, 486 F. Supp 1119 (C.D. Cal. 1980); In re Marriage of J.B. and H.B., 326 S.W.3d 654 (Tx. Ct. App. 2010); Conaway v. Deane, 932 A.2d 571 (Md. 2007); Hernandez, 855 N.E.2d1; Andersen, 138 P.3d 963; Morrison v. Sadler, 821 N.E.2d 15 (Ind. App. 2005); Standhardt v. Super. Ct., 77 P.3d 451 (Ariz. Ct. App. 2003); Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974); Baker, 191 N.W.2d 185. Further, in Hadix v. Johnson, 230 F.3d 840, 843 (6th Cir. 2000), the Sixth Circuit reiterated the concept that a statute will be afforded a strong presumption of validity and must be upheld as long as there is a rational relationship between the disparity of treatment and some legitimate government purpose, and that reasoning should apply with even more force to a constitutional amendment. The government has no obligation to produce evidence to support the rationality of its 20

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statutory classifications and may rely entirely on rational speculation unsupported by any evidence or empirical data. Id. at 843. Rather, “‘[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it,’ whether or not the basis has a foundation in the record.” Heller, 509 U.S. at 320–21 (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)). Thus, the burden is not on the State, in defending the people’s decision to preserve traditional marriage, to address whether including same-sex couples in marriage would harm marriage; quite the opposite, the burden is on the proponents of same-sex marriage to show how changing the meaning of marriage would advance the purposes of marriage. As the Supreme Court recognized in Johnson v. Robison, 415 U.S. 361, 383 (1974), “[w]hen . . . the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not, we cannot say that the statute’s classification of beneficiaries and nonbeneficiaries is invidiously discriminatory.” Accordingly, states need not provide marital recognition to same-sex couples if doing so

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would not promote the state’s reason for recognizing marriages in the first place. See Citizens for Equal Prot., 455 F.3d at 867-68. Here, Plaintiffs have failed to articulate any facts demonstrating that the Michigan Marriage Amendment’s recognition of opposite-sex marriage is not rationally related to any conceivable interest. Michigan law does not, nor has it ever, recognized same-sex relationships as valid marriages. Plaintiffs have not alleged that the history surrounding the passage of the 2004 constitutional amendment reflects any animus against same-sex couples. Nor does it; it merely reflects that “most people” “throughout the history of civilization” have considered that it is “essential to the very definition of [marriage] and to its role and function” that it is “between a man and a woman,” Windsor, 133 S. Ct. at 2691, and so voters could rationally decide to preserve the foundation for the traditional family. Therefore, this Court has no reason to conclude that the State’s continued limitation of marriage licenses to opposite-sex couples is irrational; nor that there is any reason behind recognition of opposite-sex marriage other than the State’s consistent public policy to preserve historical and traditional definition of

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marriage, which is within the “authority and realm” of this State. Windsor, 133 S. Ct. at 2690. While Plaintiffs put forth reasons why same-sex couples ought to be recognized by Michigan in marriage, they fail to meet their burden to show that Michigan’s Marriage Amendment is not rationally related to any conceivable legitimate State interest. This is likely because they cannot meet that burden, as Michigan’s limitation of marriage to opposite-sex couples is rationally related to legitimate State interests— the preservation of the historic institution of marriage as a union of one man and one woman, which in turn, uniquely fosters responsible natural procreation and promotes raising children in a home environment with both a mother and a father. Opposite-sex marriages have been recognized as promoting these “long-standing societal benefits” because they are the only sexual relationship capable of producing children. See Standhardt, 77 P.3d 451; Morrison, 821 N.E.2d 15; Jackson, 2012 U.S. Dist. LEXIS 111376 (D. Haw. Aug. 8, 2012); see also “What is Marriage?” Harvard Journal of Law & Public Policy, Vol. 34, No. 1, Winter 2010, pp. 255-58. “[T]he limitation of marriage to one

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man and one woman preserves both its structure and its historic purposes.” Goodridge, 798 N.E.2d 941, 992 n.13. At the very least, it is for the citizens of Michigan to determine whether there is a social benefit to be gained from the promotion of same-sex partnerships. Again, Plaintiffs seek to avoid the legislative process and ignore Michigan’s voters, who have already voiced their support for continued historical recognition of opposite-sex marriage through the passage of the Marriage Amendment. An expression of the popular will expressed by majority popular vote must not be cavalierly disregarded. City of Eastlake v. Forest City Enters, Inc., 426 U.S. 668, 679 (1976). Michigan’s marriage framework creates stability in the law and legal predictability, which are all in the best interest of the child. And defining marriage as between one man and one woman furthers Michigan’s legitimate interests in attempting to provide the optimal family setting for its children. The Legislature is entitled to experiment with its social policy to determine what is in the State’s best interest. But “[i]t . . . should not be constitutionally compelled to race down [that] path while so many questions about the impact of same-sex marriage 24

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remain unanswered.” Jackson, 2012 U.S. Dist. LEXIS 111376 at *143; see Mark Regnerus, How Different are the Adult Children of Parents who have Same-Sex Relationships? Findings from the New Family Structures Study, 41 Social Science Research 752, 753-55 (2012). II. Plaintiffs fail to establish that the Michigan adoption code violates their equal-protection rights. A. Michigan’s Adoption Code.

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.”). Because it is the welfare of the adoptee child that is the overriding interest of the State, and the State acts in a protective and provisional role of in loco parentis for adoptees, the State can make classifications for adoption that would be otherwise constitutionally suspect. Lofton v.

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Sec’y of the Dep’t of Children & Family Serv., 358 F.3d 804, 818 (11th Cir. 2004). For example, in screening adoption applicants, Michigan considers several factors,9 many of which, if employed outside the adoption process, would be unlikely to withstand constitutional scrutiny. Troxel v. Granville, 530 U.S. 57, 68 (2000) (recognizing that, absent neglect or abuse, the state may not “inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children”). However, the decision to adopt a child is not a private one, but a public act. Lofton, 358 F.3d at 810-11. Thus, Michigan’s paramount interest is not providing people the chance to become parents, but rather identifying individuals whom it deems most capable of parenting adoptive children and providing them with a secure family environment. Plaintiffs challenge that the Michigan Adoption Code on equalprotection grounds because as an unmarried, same-sex couple, they are Among the factors considered are: age, education, income, the capacity and disposition to foster the religion, racial identity, and U.S. citizenship. See Department of Human Services Adoption Application, available online at http://www.michigan.gov/dhs/0,4562,7-1245455_7199_52659---,00.html; see also Department’s Adoption Services Manual (ADM) §§ 430, 500, and 520. 26
9

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unable to jointly adopt, and their children are unable to receive legal benefits from both partners. Again, their claims fail as a matter of law because Michigan’s limitation on adoption by multiple unmarried couples is rationally related to its legitimate interest in promoting the traditional family model.

B.

Michigan’s Adoption Code does not violate the Equal Protection Clause because it is rationally related to the State’s interest in promoting the traditional family.

At the outset, State Defendants do not concede that Plaintiffs are similarly situated to a single individual, a married individual, or married couples. Nor do they concede that Plaintiffs are treated any differently under the Michigan Adoption Code than any other unmarried couple. Notwithstanding, State Defendants are entitled to judgment as a matter of law because Michigan’s Adoption Code is rationally related to the State’s legitimate interest in promoting the best interests of children and protecting the traditional family. Indeed, joint adoptions by unmarried couples in Michigan would run contrary to the historical purpose of adoption, i.e., to imitate the natural family, and “it [is] inconsistent with the general scope and purpose of adoption 27

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statutes to allow two unmarried persons to make a joint adoption.” In re Adams, 189 Mich. App. at 544. More specifically, Michigan’s interest in not recognizing adoptions of its children by unmarried couples is part of the State’s recognition of the importance of the traditional family. Michael H. v. Gerald D., 491 U.S. 110, 122 (1989). It also avoids numerous unmarried people seeking to jointly adopt one child, thus creating situations that run quite contrary to the traditional family. By limiting adoption to single persons, married couples, or a married individual, Michigan has created a logical legal framework, creating predictability and stability, which is in the best interests of the children affected. The Michigan Adoption Code is also rationally related to this interest in furthering the best interests of adopted children by placing them in the optimal home environment, i.e., in families with married mothers and fathers. Such homes provide the stability that marriage affords and the presence of both male and female role models, which this State considers critical to childhood development and socialization. The Michigan Legislature, in enacting the adoption statute, Mich. Comp. Laws § 710.24, could have reasonably concluded that having 28

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both male and female parenting is vital in shaping sexual and gender identity. This is a rational State interest. While Michigan recognizes adoptions by single persons, those adoptions are still consistent with Michigan’s attempt to imitate the optimal home environment. Adoptive parents serve as replacements for the child’s own biological parents. “[O]ne of the parents has not yet been ‘replaced.’” Camille S. Williams, Family Norms in Adoption Law: Safeguarding the Best Interests of the Adopted Child, 18 St. Thomas L. Rev. 681 at *691 (2005). But a single person “remains eligible to marry,” and, thus there always remains the possibility that the natural family will be completed. Lynn Wardle, A Critcial Analysis of Interstate Recognition of Lesbigay Adoptions, 3 Ave Maria L. Rev. 561, 615 (2005). No such possibility exists with same-sex couples. A same-sex couple can never constitute a natural or biological family, which this State recognizes as the ideal home for child-rearing. Michigan’s Adoption Code steadfastly maintains its focus on the best interests of children. It has done so based on the premise that—all things being equal—the traditional family structure is superior to other household compositions. Cf. Hernandez, 855 N.E.2d at 7 (plurality opinion) (“[t]he 29

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Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father.” ). Although Plaintiffs may disagree with the legislature’s wisdom or logic, Michigan’s encouragement for the creation of the imitative traditional family through its adoption laws is reasonable. Beach Communications, 508 U.S. at 313-14. Plaintiffs will likely refer this Court to social science research and the opinions of mental health and child welfare professionals that there is no child welfare basis for excluding second-parent-adoptions. But under conventional rational-basis review, “a legislative choice is not subject to courtroom fact finding and may be based on rational speculation unsupported by evidence or empirical data.” Beach Communications, 508 U.S. at 315. Moreover, the social science research and opinions that Plaintiffs are likely to rely on are not so well established and so far beyond dispute that it would be irrational for the Michigan Legislature to believe that the interest of this State’s children are best served by permitting unmarried people to jointly adopt. Lofton, 358 F.3d at 824; see also Mark Regnerus, How Different are the Adult Children of Parents who have Same-Sex Relationships? Findings from 30

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the New Family Structures Study, 41 Social Science Research 752 (2012). Social science research and opinions in this very recent and still developing body of research are unsettled. The Michigan Legislature may have been well aware of the criticisms of the research and opinions cited in support of second-parent-adoptions, such as flaws in the studies’ methodologies and conclusions, the use of small, self-selected samples, reliance on self-report instruments, politically driven hypotheses, and the use of unrepresentative study populations consisting of disproportionately affluent, educated parents. Alternatively, the Michigan Legislature could have reasonably considered and credited other studies that have found that children raised in traditional family households fare better than children raised in non-traditional home environments.10 Or the Michigan Legislature

See, e.g., Mark Regnerus, How Different are the Adult Children of Parents who have Same-Sex Relationships? Findings from the New Family Structures Study, 41 Soc. Sci. Research 752 (2012); Kristin Anderson Moore, et al., Marriage From a Child’s Perspective: How Does Family Structure Affect Children, and What Can We Do about It?, Child Trends Research Brief (June 2002); Mary Parke, Are Married Parents Really Better for Children?, Center for Law and Social Policy, Policy 31
10

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might have considered the social science research and professional opinions premature given the social experimentation and debate occurring across the country regarding the definition of the family. See “What is Marriage?”, Harvard Journal of Law & Public Policy, Vol. 34, No. 1, Winter 2010. Whatever the case may be, because there is simply not sufficient data to show what, if any, effects same-sex unions have on children, it is not irrational for Michigan to proceed with deliberate caution before placing adoptive children in an alternative, unproven, family structure. Lofton, 358 F.3d at 826. Likewise, Michigan may rationally believe that recognition of second-parent adoptions would redefine the family and create untenable Brief (May 2003); Ronald P. Rohner and Robert A. Veneziano, The Importance of Father Love: History and Contemporary Evidence, Review of General Psychology 5.4 (2001); Deborah A. Dawson, Family Structure and Children’s Health and Well-being: Data from the National Health Interview Survey on Child Health, Journal of Marriage and the Family, 53 (1991); Mary Stewart Van Leeuwen, My Brother’s Keeper: What the Social Sciences Do (and Don’t) Tell Us About Masculinity, (Downers Grove, IL: InterVarsity Press, 2002); David Popenoe, Life Without Father: Compelling New Evidence That Fatherhood and Marriage are Indispensable of the Good of Children and Society, (New York: The Free Press, 1996), p. 197.

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legal relationships. For example, second-parent adoptions could create an unprecedented legal relationship in which two adults unrelated to each other are legally responsible for raising a child. This would raise questions, such as whether a court would give these two people, who coadopted but decide to split up, the same legal standing as married parents. If the intent for recognition of second-parent adoptions, as Plaintiffs claim, is to provide emotional or financial support for children, Michigan law already provides such legal structures. Michigan has the following available to Plaintiffs: guardianships, conservatorships, wills, durable medical and financial powers of attorney, durable powers of attorney (permitting Plaintiffs to designate each other as agent for purposes of parental decisions), and testamentary trusts (allowing Plaintiffs to list each other as primary beneficiaries and the child as alternate beneficiaries) that can provide security for the children without undermining the institutions of marriage and family or creating potentially untenable relationships. In sum, Michigan has a legitimate interest in regulating who may and may not jointly adopt. And Michigan has articulated legitimate 33

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State interests served by its adoption law: promoting the best interest of children, family stability, optimal family structure, and avoiding untenable multiple party adoptions. Clearly, Michigan has a legitimate interest in encouraging a stable and nurturing environment for the education and socialization of its adopted children. Under the rationalbasis standard, Michigan is not required to choose between addressing all aspects of a situation or none of them, so long as the choice made by the Legislature is rational. Heller, 509 U.S. at 320. Accordingly, Michigan’s Adoption Code does not violate Plaintiffs’ equal-protection rights. Plaintiffs and their children are not part of a suspect classification, no fundamental right is implicated, and Michigan’s Legislature had a rational basis in enacting § 710.24. In re Adams, 189 Mich. App. at 547. The path chosen by the Legislature and its political wisdom is not for this Court to question. See Minnesota v. Clover Leaf Creamery, 449 U.S. 456 (1981). Indeed, there is a rich debate occurring on the definition of marriage, and this Court should not interpose itself in the discussion and end the debate. Whatever the ultimate decisions on these questions, they should be left to the people of Michigan. See In re Winship, 397 U.S. at 385 (Black, J., dissenting) 34

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(“The people . . . may of course be wrong in making . . . determinations [of fairness], but the right of self-government that our Constitution preserves is just as important as any of the specific individual freedoms preserved in the Bill of Rights.”). CONCLUSION AND RELIEF REQUESTED State Defendants respectfully request this Court to grant its Motion for Summary Judgment, award State Defendants their attorneys’ fees and costs, and grant such further relief this Court deems just and equitable. Respectfully submitted, Bill Schuette Attorney General

/s/Kristin M. Heyse Tonya C. Jeter Attorneys for State Defendants Mich. Dep’t of Attorney General Health, Education & Family Services Division P.O. Box 30758 Lansing, MI 48909 heysek@michigan.gov jetert@michigan.gov P64353 P55352 35

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CERTIFICATE OF SERVICE (E-FILE) I hereby certify that on August 14, 2013, I electronically filed the above document(s) with the Clerk of the Court using the ECF System, which will provide electronic copies to counsel of record. /s/ Kristin M. Heyse Assistant Attorney General Attorney for State Defendants Health, Education & Family Services Division P.O. Box 30758 Lansing, MI 48909 (517) 373-7700 heysek@michigan.gov P64353

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