In The News

The National Media Focuses on DeBoer v Snyder

At Nessel and Kessel Law, specifically Dana Nessel, we have been fielding requests from media outlets from all over the world regarding our challenge to Michigan’s ban on same-sex marriage. 

Here is a link to a recent story done by the New York Times, featuring our clients and their attorney, Dana Nessel.

Here is a link to another recent story done by The Guardian, a Manchester, England based newspaper. 

Lesbian Couple Refused Treatment by Doctor

Recently, members of the Michigan Legislature decided – in their infinite wisdom – that the Elliot Larson Act (Michigan’s Civil Rights Act) would not be amended to protects against discrimination based upon sexual orientation or gender identity.  

Krista and Jami Contreras, a couple from southeast Michigan, adopted their daughter in October 2014.  Naturally, they sought out a pediatrician for their infant daughter.  Dr. Vesna Roi came highly recommended to them by the midwife who assisted on the birth of their daughter.  The couple met with Dr. Roi, who appeared to look forward to treating their newly born daughter.  However, when Krista and Jami arrived for their daughter’s first wellness appointment they were told by one of Dr. Roi’s colleagues that she (Dr. Roi) would not be treating their daughter because of the couples’ sexual orientation.  Yes, that’s right, a doctor refused to treat a patient because of the parents’ sexual orientation.  Here is a link to a story by Fox 2’s Amy Lange, where Krista, Jami, and civil rights attorney Dana Nessel speak about the situation. 

Unfortunately, law makers in Michigan seem intent on allowing for state sanctioned, protected discrimination  against members of the LGBT community.  The current state of the Michigan law allows for workplace discrimination based on sexual orientation, refusal of basic medical services because of a patient’s sexuality, housing discrimination, educational discrimination, refusal to allow for second parent adoptions in the cases of same-sex couples, and of course, the denial of the right to marry.  Now, as we can see, Michigan’s laws even allow for the refusal of medical services because of a family member’s sexual orientation.  The fact that there are ZERO protections for members of the LGBT community is something that the Michigan Legislature is clearly very proud of.   

At Nessel and Kessel Law, we are proud to stand up for the rights of members of the LGBT community.  Nessel and Kessel Law has spearheaded Michigan’s ban on same-sex marriage, and are headed to the United States Supreme Court in April, to fight for this basic human right.  If you or a loved one has been discriminated against because of sexual orientation or your status as a member of the LGBT community, contact the attorneys at Nessel and Kessel Law today. 

What’s going on in the Michigan case for same-sex marriage equality?

The Supreme Court of the United States (SCOTUS) will soon hear arguments regarding the constitutionality of same-sex marriage bans in the Sixth Circuit — a jurisdiction that also includes Ohio, Kentucky, and Tennessee — but the decision is one that will affect same-sex couples, and their families in states across the nation.

All eyes are on Michigan.

Bans on same-sex marriage in Michigan have been in place since 1996; gay and lesbian couples have been denied even the simplest of relationship recognition since 2004, when state voters passed a constitutional amendment banning civil unions as well as marriage. And now, 11 years later, Michigan is quite possibly the most important state for marriage equality right now, and its all thanks to April DeBoer and Jayne Rowse, who, working with Dana Nessel, filed a one-of-a-kind federal lawsuit known as DeBoer v. Snyder.

DeBoer and Rowse went to court not to challenge the ban, per se, but hoping to change second-parent adoption laws, in order to better protect their family. They, along with their attorney went before U.S. District Judge Bernard Friedman, who strongly suggested that they expand the scope of their argument to deal with marriage equality in general.

After a trial argued in partnership with American Civil Liberties Union and Gay and Lesbian Advocates and Defenders, Judge Friedman handed down his ruling in January 2014: Same-sex marriage bans in Michigan were unconstitutional, and couples must be allowed to wed unhindered. But it was not to be, not for long.

On November 6, 2014, the Sixth Circuit Court of Appeals reversed Friedman’s decision, upholding the bans as they are in place. Seems like a bit of political ping pong, does it not? Plaintiffs then petitioned the Supreme Court to review the decision, and in January of this year, the court granted their request.

What happens next?

SCOTUS is scheduled to hold its final session of oral arguments April 20–29, and so the same-sex marriage cases will likely be heard during that time. All parties anticipate an issuance of the Supreme Court’s opinion before the end of the term, in June 2015. This timeline is, of course, still purely speculative, and may change.

If the Justices’ collective gavel comes down in favor of marriage equality, there will be much reason to celebrate, and at the same time: Much confusion. Antigay state officials will attempt to delay compliance, and some may even refuse to issue marriage licenses until forced to do so.

If the decision falls in the other direction — though unlikely — the status quo will remain. In those states with marriage equality, same-sex couples will still be able to wed. But in those states with bans in place (like Michigan), bans there still will be.

But let’s not think of that just yet.

For now, plaintiffs Jayne Rowse & April DeBoer are excitedly planning their very first trip to the nation’s capital, and attorneys on either side of the issue are preparing arguments that, one way or another, will surely change the course of history.

For April DeBoer & Jayne Rowse, the Fight for Marriage Equality Began on One Snowy Night in 2011

Though the constitutional challenge to the same-sex marriage bans in our nation’s Sixth Circuit only began making the news last year, for April DeBoer and Jayne Rowse the fight began in 2011. The night was dark, and snowy. The road was rural. DeBoer, Rowse, and their three young children found themselves staring at oncoming headlights… in their lane. All five of their lives could have been turned upside down in an instant.

“At the last second, he swerved off the road and veered into a field,” DeBoer recalled. “I don’t think Jayne and I would have survived the impact. It was that moment, that realization, that we needed to get things in order.”

The next day, the task seemed simple enough: They would have wills drawn up, and assign custody of their children. But, as the women soon learned, the task would be anything but simple. As a lesbian couple living in the state of Michigan, DeBoer and Rowse could be granted no legal claim over the other’s adopted child[ren]. (Michigan law prohibits unmarried couples from adopting jointly, and a single parent adopted so each of DeBoer and Rowse’s children.)

“It was scary,” DeBoer said. “All along we thought we could protect our children, and we couldn’t.”

DeBoer and Rowse, who met through mutual friends in 1999, now have four children: Six-year-old Nolan and five-year-old Jacob legally belong only to Rowse, while four-year-old Ryanne and two-year-old Rylee are, in the eyes of the law, only DeBoer’s. But ask any member of this family, and they’ll tell you together, they belong to, and with every one. None could imagine differently.

Their fight for marriage equality began in 2011.

On that night in 2011, and in the days that followed, DeBoer and Rowse came to know that their lives could be turned upside down in an instant. Their family could be torn apart, and there was nothing that could be done about it: Unless.

Unless they filed a federal lawsuit to challenge the adoption laws in the state of Michigan, which they did at Nessel & Kessel attorney Dana Nessel’s urging. But a year later, in United States District Court Judge Bernard A. Friedman’s courtroom, the whole scope of their endeavor shifted.

“We felt the judge’s implication was clear — either amend the proceedings to challenge the marriage ban, or the entire case could be dismissed,” Nessel said. “April and Jayne, as much as they wanted to get married and adopt their kids, never set out to challenge the marriage ban.”

The trial last two weeks, and Judge Friedman ruled in their favor, but DeBoer and Rowse’s story doesn’t end there. It’s only just begun. Though 300 couples were married during the time between Friedman’s ruling, and when the Sixth Circuit Court of Appeals overturned his ruling in November, our clients were not among them. They made the tough decision to wait, to wait until the law was clear, to wait until every couple in Michigan had the right to marry.

But now it seems they won’t have to wait long.

“I think that’s just going to be overwhelming, seeing the justices,” Rowse said. “We’re optimistic and hopeful that they’re going to be on the right side of history.”

“Supporting” Same-Sex Marriage and Supporting Same-Sex Marriage

We at Nessel and Kessel Law have never been big fans of the phrase “put your money where your mouth is.”  But never have those words been more appropriate to direct at the current situation surrounding the DeBoer v Snyder case, challenging Michigan’s ban on same-sex marriage.  As many of you know, Dana Nessel and the other attorneys on the case have been fighting this fight for the last 3 years.  What many people don’t know, and are shocked to hear, is that during this time they have practically been working for free while also keeping their own practices afloat.  There has been little to no help from most major organizations who claim that their goal is to stand up for, and represent, the LBGT community.  Here is a link to a story that only scratches the surface of the struggle that Dana Nessel and the other lawyers have been enduring these many years. 

The Supreme Court of the United States Agreed to Hear Arguments Regarding the Constitutionality of Same-Sex Marriage, But Why Now?

After much delay, and even more deliberation, the Supreme Court of the United States (SCOTUS) decided on January 16 to hear arguments regarding the constitutionality of same-sex marriage. Ask Dana Kessel, April DeBoer, and Jayne Rowse, and they’ll tell you, this chance to present their case in front of the nation’s highest ruling body has been a long time coming.

“While many in the legal community, as well as [the two plaintiffs and lead attorney in the challenge to Michigan’s ban on same-sex marriage] expected the Supreme Court to allow for the case to be heard, it is still a monumental moment in the fight for LGBT rights,” said Chris Kessel, Partner at Nessel & Kessel Law. “Never before has the United State Supreme Court allowed for oral argument, and [never before have they] been prepared to rule on the exact issue of same-sex marriage.”

But why has it taken so long, and what does it all mean?

What’s been the holdup?

For same-sex couples (like DeBoer and Rowse), and for their straight allies, it may seem like the “Should it, or shouldn’t it be?” has been raging for way too long — for 11 years, in fact, since Massachusetts became the first state to legalize same-sex marriage — but the truth is, the issue came into the justices purview only in the last half-decade.

Why now?

In October 2014, the Supreme Court sidestepped the issue of gay marriage when it declined to review cases that originated in Chicago, Denver, and Richmond, Virginia. Lower courts in these regions ruled that the Constitution does protect same-sex unions, but just a month later, another panel, in Cincinnati this time, disagreed. While this Sixth Circuit decision at first seemed to be a loss for the LGBT community — most especially for those in the affected states: Michigan, Ohio, Kentucky, and Tennessee — it was this conflict that ultimately led SCOTUS to take the case.

To date, same-sex couples can get legally married in 36 states and the District of Columbia, while the law books in 14 states still ban gay marriage. Attorneys on both sides of the issue are preparing their arguments, and preparing themselves to stand before nine elected justices, and plead theirs, and their clients’ cases.

When will we know the outcome?

Oral arguments will begin in April, and the Supreme Court of the United States is expected to issue their ruling in late June. The Nessel & Kessel Law blog will be your resource for all things same-sex marriage in the months to come, so check back often.

SCOTUS grants same-sex marriage petition!

Is it possible to be totally floored by something you completely expected?  That is a question that can now be answered by April DeBoer, Jayne Rowse, and Dana Nessel, the two plaintiffs and lead attorney in the challenge to Michigan’s ban on same sex marriage.  While many in the legal community, as well as April and Jayne, expected the Supreme Court to allow for the case to be heard, it is still a monumental moment in the fight for LGBT rights.  The Supreme Court decided that it will not only hear Michigan’s case involving same-sex marriage, but it will also hear cases from Ohio, Kentucky, and Tennessee.  The two questions that will be presented to the Court are (paraphrased): 1) is it constitutionally permissible for a state to ban same-sex marriage?, and 2) can a state refuse to recognize a valid same-sex marriage from another state?

While it is important to remember that is just one more step towards equality for the LBGT community…it is a BIG step.  Never before has the United State Supreme Court allowed for oral argument and been prepared to rule on the exact issue of same-sex marriage.  Yes, there have been other cases that have certainly involved same-sex marriage (the Windsor and Prop 8 cases to name two recent decisions).  However, those cases involved complex issues of legal standing to challenge certain laws and federal recognition of same-sex marriage, which is why the Court did not decide the ultimate question.  Thankfully the Court will now have to make a ruling.  Dana Nessel, the other attorneys on the case, as well as many prominent civil rights attorneys are hopeful, and cautiously optimistic, that the Court will come down on what history will ultimately prove to be the right side of this argument.

Here is a link to the press conference where Dana Nessel, April DeBoer and Jayne Rowse expressed their reaction to the Supreme Court’s decision to hear their care.

State House Passes Another Anti LGBT Bill

In a move that surprises no one and saddens many (though clearly not enough), the Michigan State House is considering a new law that puts the LBGT community in the crosshairs.  The proposed anti LGBT bill (allegedly pro-religion) would allow for adoption agencies with “faith based objections” to turn away gay or lesbian people trying to adopt a child.  To be clear, the law does not specifically cover private agencies that are funded solely by a particular religious organization.  Rather, the law covers adoption agencies that receive state money. 

Now let’s be perfectly clear about the situation.  This means that state tax dollars could be funding organizations that publically, openly, and with financial protection from the State of Michigan would be allowed to discriminate against members of the LGBT community. 

Proponents of the bill claim that the law is not about discriminating against LGBT persons, but is actually about protecting the rights of the organizations.  The sponsor of the bill, Rep. Ken Kurtz (R) says that agencies who want to turn away a family would inform the State and then the families would be referred to another agency.  In their minds, this is not an anti LGBT bill.  Unfortunately what Rep. Kurtz skims over is the fact that the law allows for State sponsored discrimination.  Just saying a bill isn’t discriminatory doesn’t mean it’s actually not discriminatory, no more than saying a particular food is low-calorie when it is really the equivalent of eating a dozen doughnuts.  While we at Nessel and Kessel Law concede that the comparison is strange one, it serves to prove the point that just because you say something doesn’t make it true.  This is never more obvious that in a case like this, where a law sanctions state funded discrimination against a particular group. 

Here is a link to a story by Fox 2’s Amy Lange, featuring Dana Nessel. 

Sixth Circuit Upholds Same-Sex Marriage Bans

In October, the Supreme Court of the United States refused to hear arguments regarding same-sex marriage, but now it seems they may not have a choice. Despite district court rulings to the contrary, the Sixth Circuit decided 2–1 to uphold same-sex marriage bans in each of the four affected states (Michigan, Ohio, Kentucky, and Tennessee). The challenges levied in Michigan and Kentucky concerned state amendments barring same-sex marriage, while couples in Ohio and Tennessee concerned themselves with earning statewide recognition for legal marriages performed elsewhere. and Michigan challenged state amendments barring same-sex marriage. Couples from Ohio and Tennessee asked the lower courts to require their states to recognize same-sex marriages performed legally in other states.

In his majority opinion, Judge Jeffrey Sutton wrote:

“A dose of humility makes us hesitant to condemn as unconstitutionally irrational a view of marriage shared not long ago by every society in the world, shared by most, if not all, of our ancestors, and shared still today by a significant number of the States.  Hesitant, yes; but still a rational basis, some rational basis, must exist for the definition.”

And,

“There are many ways, as [the] lower court decisions confirm, to look at this question: originalism; rational basis review; animus; fundamental rights; suspect classifications; evolving meaning.  The parties in one way or another have invoked them all.  Not one of the plaintiffs’ theories, however, makes the case for constitutionalizing the definition of marriage and for removing the issue from the place it has been since the founding: in the hands of state voters.”

Same-sex marriage is, and will continue to be a passion-inspiring topic for those on both sides of the political spectrum, but for the same-sex couples fighting for the right that so many heterosexual couples take for granted, this Sixth Circuit ruling is so much more than dinnertime debate fodder. To date, petitions have been filed by such couples in Ohio and in Tennessee, claiming that the federal appeals court’s ruling was “riddled with flaws” and questioning “whether the ban on recognition violates married couples’ right to travel between the states.”

“By disrespecting their marriages, Ohio has done more than deny petitioners basic legal rights to which they are entitled,” one petition reads. “It has treated Petitioners as second-class citizens whose most intimate relationships have been denied the dignity and respect they deserve.”

In October, the Supreme Court of the United States refused to hear arguments regarding same-sex marriage, but even Ruth Bader Ginsburg must now admit “some urgency in the court taking the case.”

In Elonis v. United States, SCOTUS Will Decide: Threats or Free Speech?

These are the facts.

Anthony Elonis was convicted — under 18 U. S. C. §875(c), which states: “Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.” — of posting on Facebook threats to injure his coworkers, his wife, and others.

Of his estranged wife, Elonis said, “There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.”

Later, he wrote of an FBI agent: “Little agent lady stood so close, took all the strength I had not to turn the [expletive] ghost. Pull my knife, flick my wrist and slit her throat.

The convicted and his lawyers have long contended that his posts, some of which contained song lyrics penned by the rapper Eminem, were not meant to threaten anyone, but just Elonis’ own way of dealing with personal, emotional pain. But the jury wasn’t convinced, and neither was the Third Circuit Court of Appeals.

This is the issue.

In June 2014, the Supreme Court of the Unites States agreed to hear the case, during which it will attempt to determine (from SCOTUSblog) “whether, consistent with the First Amendment and Virginia v. Black, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant’s subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a ‘reasonable person’ would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort; and (2) whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant’s subjective intent to threaten.”

Boil it down, and this case is about “true threats,” which the court will be forced to define as it hears this final appeal, and forced to apply to the relatively ungoverned realm of social media.

Director of the Pennsylvania Center for the First Amendment Robert Richards falls in favor of Elonis on this issue, arguing that people use social media “to say all kinds of things” without saying anything to any one person in particular. Others argue that threats made via social media are very real, with very real economic and psychological ramifications.

And that: That’s for the Supreme Court to decide.

Arguments will begin on Monday, December 1, 2014.