Why Michigan's Marriage Ruling is So Devastating for the Christofascists

As noted in a previous post, the federal court ruling that struck down Michigan's ban on same sex marriage made strong statements on the lack of credibility of the state's "expert witness" and specifically cited the reasons why the Christofascist funded studies they relied upon were flawed and unconvincing.  All toll, the ruling was devastating to the standard rationale put forth by the enemies of Marriage equality - the case largely laid bare the fact that religious based discrimination is the sole motivation for such anti-gay laws - particularly because the ruling followed a trial with witnesses and sworn testimony.  Most of the rulings that have invalidated same sex marriage bans - e.g., Bostic v. Rainey - were decided on motions for summary judgment and relied solely on pleadings, briefs and oral arguments.  Why is this distinction important?  Because it changes the nature of the review on appeal.

In a case decided on summary judgment, the decision is based on a finding that no question of fact exists and that, therefore, all that is required is for the Court to apply the applicable law to the undisputed facts.  On appeal, reversal can be based on a simple finding that some question of fact existed and that, therefore, the lower court should not have ruled on summary judgment. The result is that the case is then remanded back to the lower court for trial unless the appellate court decides to review the questions of fact itself.  In contrast, a ruling entered after a trial is more difficult to reverse for the simple reason that the lower court heard the testimony of witnesses and its decision on the facts will not be challenged by the appellate court unless clearly wrong.  Why?  Because the lower court heard the witnesses in person, was able to observe their demeanor and body language.  Appellate courts are typically reluctant to second guess a lower court's findings of fact for this reason.  

In his ruling in striking down Michigan's ban, Judge Friedman took pains to indicate why the testimony of the state's witness was not believable and also took pains to find why the Christofascists funded "studies" were flawed and not probative of the state's argument.   This will make the State of Michigan's burden higher on appeal.  Which is a good thing.  A piece at Towleroad looks ate more aspects of the Michigan ruling.  Here are excerpts:

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

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

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

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

There are two takeaways from this situation.

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

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

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