Whether you’d like it to be or not, nothing having anything to do with the law is black and white. Wording is unclear; different people have differing opinions regarding how, and when enforcement is appropriate; and the whole system is upended: Guilty people slide by, while innocent people are punished.
This is exactly what’s happening in Michigan.
Recent changes to state statute regarding field sobriety tests for impaired drivers are confusing, and frustrating police and prosecutors, and leading judges to throw sobriety test evidence out of court entirely.
Lawmakers’ intention was to create new standards that made it easier for Michigan police to arrest, and charge suspects with drugged driving. But as Livingston County Prosecutor William Vailliencourt has pointed out, the Legislature failed to clearly define whether or not field sobriety tests are admissible, which has left attorneys and judges across the state to interpret the law as they see fit.
Vailliencourt and his associates posit that the language of the law allows for field sobriety tests — which have traditionally included backwards recitation of the alphabet; the placement of finger to nose; and/or a roadside breath analysis — an argument with which Livingston County District Judge Carol Sue Reader agrees. (She has admitted roadside test evidence in at least two recent cases.)
But many defense attorneys in the state disagree with Vailliencourt and Reader. Citing the same language of the law, one Michigan defense attorney in particular, Lyle Dickson, has not minced words when saying he believes that the “admissible” interpretation is wrong.
“Obviously their cases are devastated without field sobriety tests coming in,” Dickson said Monday. “I don’t understand how Bill Vailliencourt can read the statute and say the plain language allows it to come in. It is only allowed in under certain, specific situations … which rarely apply.”
In Dickson’s particular case, his client — a Jackson County resident — was seen weaving, and later arrested and charged — in Livingston County — with operating under the influence of a controlled substance. Reader, who was the judge in the case, admitted testimony regarding the field sobriety tests conducted, as well as that from a drug recognition officer, which Dickson believes should not have been admissible, and which led to his client’s conviction.
What prosecutors, police, and defense attorneys can all agree on in this instance is that the law needs “tweaking (Vailliencourt’s word). And that’s exactly what’s happening.
“The wording is there and it’s ready to go,” said State Representative Dan Lauwers, regarding the omission of a clear definition for field sobriety tests.
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.
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.
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.
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.”
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.
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.
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.
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.