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A Reagan-Appointed Judge Weighed in for Same-Sex Marriage in Michigan

Getty Images / Bill Pugliano

The most surprising thing about a Michigan district court ruling striking down the state’s ban on same-sex marriage may be the judge who wrote it. Bernard Friedman, a 70-year-old Ronald Reagan nominee who ruled against the University of Michigan Law School's affirmative action policy in 2001, said Friday that the state’s arguments did not amount to a “rational basis” for the law—echoing four Democratic appointees who have also declared prohibitions on gay marriage unconstitutional in the past year.

“Friedman’s opinion suggests that even a Reagan appointee—albeit in a northern state where opinion is probably already in favor of gay marriage by a majority—can no longer comprehend such laws as anything but bigotry,” said Michael Klarman, a constitutional law scholar at Harvard Law School, in an email. Since the Supreme Court’s most recent ruling on this issue, in Windsor v. United States last June, deliberately did not weigh in on state bans, he said, “I would have predicted that Democratic lower court judges would use that decision to strike down bans on gay marriage and that Republican lower court judges would do the opposite.”

Instead, Friedman’s ruling is a sign of a cultural sea change in which acceptance of gay marriage has spread far outside its traditional strongholds, among progressives and the young. Along with the five rulings against same-sex marriage bans that have come down since Windsor, three federal judges have ruled that their states must recognize marriages performed elsewhere, one of them a George H.W. Bush appointee in Kentucky. The law is in such flux that many suspect the Supreme Court will take up same-sex marriage again before too long.     

The Michigan case, brought by a lesbian couple seeking the right to jointly adopt the three children they are raising together, may be one of many, but it was only the third in history to assemble a full courtroom trial. The state’s defense hinged on the claim that heterosexual parenting is better for children, and it marshaled the most prominent social science to take that view—in particular, a notorious (and broadly discredited) study by University of Texas sociologist Mark Regnerus. In a blow to same-sex marriage opponents, Friedman called Regnerus’s testimony “entirely unbelievable and not worthy of serious consideration.” He went on:

Taking the state defendants’ position to its logical conclusion, the empirical evidence at hand should require that only rich, educated, suburban-dwelling, married Asians may marry, to the exclusion of all other heterosexual couples. Obviously the state has not adopted this policy and with good reason. The absurdity of such a requirement is self-evident. Optimal academic outcomes for children cannot logically dictate which groups may marry.

It's possible Friedman found the state's arguments unpersuasive partly because they clashed with his own experience. About twenty years ago, a lesbian lawyer Friedman had selected to clerk for him revealed she would be starting the job with a baby in tow. As Brian Dickerson of the Detroit Free Press explained in a feature piece on Sunday, Friedman has stayed close to his former clerk, Judith Levy, and her family. "He became more than a casual friend to them," one mutual acquaintance explained. "It's almost like he's their grandfather."

Like most of the other decisions on same-sex marriage this year, the Michigan ruling has already been appealed. Roughly 300 same-sex couples were married in the 24-hour window between the ruling on Friday and the 6th Circuit Court of Appeal’s decision to issue a temporary stay on Saturday. The court is expected to issue a permanent stay this week, meaning Michigan’s ban on same-sex marriage will stay in effect throughout the appeal. Experts say the makeup of the 6th Circuit makes the outcome difficult to predict (Levy, by chance, is its most recent addition), but it’s likely either party would appeal an unfavorable ruling.

“Right now these district court marriage decisions are piling up, all going the same direction…but at some point the unanimity of the current decisions is going to break down,” said Margo Schlanger, an expert on civil rights law at the University of Michigan Law School, in an email. She pointed out that aspects of Justice Anthony Kennedy’s decision in Windsor “certainly point towards marriage equality as a constitutional requirement,” and said, “I would predict that by the time the issues get before the Supreme Court again, barring a change in personnel, the Court decides for marriage equality.” The Michigan case will likely become one of several pressuring the Supreme Court to weigh in soon.