Same Sex Marriage

Dana Nessel, Newsmaker of the Year!

In what should come as a shock to no one in the State of Michigan, Dana Nessel was named one of 2015’s Newsmakers of the Year, by Gongwer news service.  Dana’s work made worldwide news when the United States Supreme Court voted to recognized the Constitutional right to marry for all same-sex couples. 

Here is a link to the full text of the article.

Don’t be surprised if you see Dana Nessel as one of 2016’s Newsmakers of the Year…work has already begun on passing an anti-discrimination amendment to Michigan’s constitution, which would be the first of its kind in the United States. 

Why you need a second-parent adoption.

Having your name on the birth certificate is not enough; you need a second-parent adoption.

On June 26, 2015, the United States Supreme Court ruled that denying marriage licenses to same-sex couples violates their 14th Amendment rights; specifically the Due Process and Equal Protection clauses. This meant that once these same-sex couples were issued licenses and were officially married, they would have the same rights as their opposite sex counterparts. As counties across Michigan began issuing marriage licenses and couples began getting married, those same couples were left unsure as how to proceed with respect to their children; specifically what is the best way to protect the second – non-biological – parent’s rights as a parent to a child born during the course of their marriage?

Initially, the consensus was that if the non-biological parent was placed on the birth certificate, they would simply become the second “legal” parent, thus their parental rights would be protected. However, this is absolutely not the case. In fact, the non-biological parent in a same sex marriage is particularly susceptible to losing their status as legal parent of their non-biological child, regardless of whether their name is on the child’s birth certificate.

In order to better understand the problem, it is necessary to understand two legal issues: 1) the definition of “parent” in accordance with Michigan’s Custody Act; and 2) the rebuttable presumption of paternity.

The Michigan Custody Act (MCA) defines a “parent” as “the natural or adoptive parent of a child.”

The rebuttable presumption of paternity is a fairly simple concept; a child born while a couple is married is presumed to be the biological child of the married couple. This presumption is codified in MCL 700.2114(a), where the “parent and child relationship” is defined follows:

“If a child is born or conceived during a marriage, both spouses are presumed to be the natural parents of the child for purposes of intestate succession. A child conceived by a married woman with the consent of her husband following utilization of assisted reproductive technology is considered as their child for purposes of intestate succession. Consent of the husband is presumed unless the contrary is shown by clear and convincing evidence. If a man and a woman participated in a marriage ceremony in apparent compliance with the law before the birth of a child, even though the attempted marriage may be void, the child is presumed to be their child for purposes of intestate succession.”

However, this presumption may be rebutted by another party, who may claim that they are the actual, natural parent of a child. This is where things can get complicated and where merely having a second parent’s name on a birth certificate (instead of performing a second parent adoption) can get couples into trouble.

The MCA is clear about what defines a parent in the state of Michigan: a person must be either the “natural or adoptive” parent of a child. Having a name on a birth certificate is not good enough. It may be a nice document to get framed, but it does not protect the second – non-biological parent – from having their parental rights stripped.   This could happen in the form of a third party, claiming to be the actual parent, who wants custody of a child. Sadly, this could also come when a same sex-couple’s relationship dissolves and the natural parent does not want the second – non-biological parent – to be in the life of their child. See the case Dana Nessel argued in Harmon v Davis, 489 Mich 986 (2011) for context about the devastating realty of this scenario. Detroit Free Press article

The issue is even more apparent when examined through the lens of the rebuttable presumption of paternity. The rebuttable presumption may be challenged by showing that the second – non-biological – parent is not the “natural” parent of the child. The reason this is such a problem for same-sex couples is obvious as only one spouse in a same-sex couple can be the biological parent of a child.

Fortunately, there is an incredibly simple way to avoid the very serious complications and pitfalls of not being considered a true parent even when your name is already on a child’s birth certificate. Second-parent adoption is not only the easy solution, it is the only solution to the problem. Once you complete a second-parent adoption, you are considered a parent to your child under Michigan law. Problem solved.

The area surrounding the legal rights of same-sex couples and their families is a new and sometimes confusing one. However, the attorneys at Nessel and Kessel Law are the most knowledgeable and experienced attorneys in the State of Michigan on these matters. If you wish to discuss second-parent adoption to protect yourself and your family, contact us at (313) 556-2300 or email us today.

 

Same-Sex Marriage Means Tax Windfall For States

It’s been a month since the landmark Supreme Court ruling that legalized same-sex marriage nationwide, and the positive implications have never been more evident.

Nessel and Kessel clients April DeBoer and Jayne Rowse will never again have to worry about the safety and security of their children; likewise, couples and families just like theirs can marry and reap the benefits opposite sex couples have long enjoyed.

But that’s truly only the start.

The Williams Institute at the UCLA School of Law, which has been tracking the effect of same-sex marriage on states since 2001, has projected that the same-sex marriage ruling could ultimately result in $184.7 million annually in state and local tax revenue.

Read more:

Same-sex marriage means tax windfall for state.

The following content was originally published by The Herald on July 26, 2015.

The Williams Institute projects that in Alabama, for instance, gay marriage will boost the state’s revenue by $1.8million a year and generate 108 jobs in the next three years in the wedding business and related industries, such as hospitality and transportation. Kansas will gain $1.2million in tax revenue annually, along with 75 new jobs in the next three years.

The institute bases its projections on the effect that same-sex unions had on the states that allowed them before the court decision. A state-by-state study shows that in the first three years in which marriage was made legal in those states, economic activity and state tax revenues grew.

In each of the first three years after California legalized gay marriage in 2008, the state added $31.4million in tax revenue and 2,178 jobs, the study found.

“For many years, we’ve known there was a positive revenue impact of marriage,” said Christy Mallory, the senior counsel with the institute who helped prepare the report.

Even before any state made gay marriage legal, Mallory said, same-sex commitment and civil unions buoyed the wedding and tourism industries and increased revenue from sales and visitors taxes.

But the findings also provide a caution for state tax collectors. After an initial surge, revenue leveled off as did the number of marriages — although revenue continues to grow in the 36 states that legalized same-sex marriage before the court’s June 26 decision.

Detroit News Recognizes Dana Nessel

In a recent article by Laura Berman, of the Detroit News, you can begin to gain an understanding of the herculean task it was to bring this case.  As is true with many things in life, the behind the scenes work and effort may never be truly understood by those not directly involved.  In fact, some us directly involved are still dumbfounded by what trying this case took out of us all.  There are certainly many more battles ahead, but for now, it’s time to take a breath and enjoy the sunshine…at least for one day.

Same Sex Couple Wins Healthcare Battle

In yet another victory, this time without the help of the courts, LGBT rights attorney Dana Nessel has helped a same-sex couple gain equal access to benefits previously denied.  Our clients, Elizabeth Gardiner and Stephanie Citron, were one of the couples able to marry in Michigan after the decision in the Deboer-Rowse case.  Unfortunately, though the marriage was legal, Ms. Citron’s employer, Kroger, used an insurance company that refused to extend marital insurance benefits to Ms. Citron’s wife, Elizabeth. 

Even when presented with all the applicable information, the insurance company refused to recognize Ms. Citron’s right to have her wife receive benefits.  Enter Dana Nessel, whose determination and success on these issues is now known world-wide.  After Ms. Nessel made clear that this type of blatant and illegal discrimination against a same-sex couple would not stand, with the threat of lending legal action, the health insurance company decided to reword their insurance p0licy.  As of today, Ms. Citron and her wife, Elizabeth, are not fully covered as a marital couple.   

Here is a link to the story done by Channel 7.

To be plain, the answers on same-sex marriage are unclear.

As we wait for the inimitable Supreme Court justices to finish their debates and issue their collective — or perhaps not so collective, as the case may end up — opinion in the matter of same-sex marriage as adjudicated in the Sixth Circuit: Our clients, April DeBoer and and Jayne Rowse, have gone back about the business of raising their children. They raise their children, and work their jobs; they go to the grocery store, and to the park, and they wait. They wait alongside so many hundreds of other families just like theirs, for a decision that could change their lives forever.

They wait. And we wait. And the nation waits.

But what will the answer be?

The attorneys at Nessel & Kessel, and those who represent the other plaintiffs in this all-important case can tell you what we hope the answer will be, but when these nine Americans sworn to uphold the Constitution get involved, it’s never quite clear.

For a bit more guidance, we turn to SCOTUSblog:

No clear answers on same-sex marriage: In Plain English

The following excerpt was originally published on SCOTUSblog on April 28, 2015.

It could turn out to be a nailbiter. After two-and-a-half hours of oral argument in the same-sex marriage cases, it was not clear where Justice Anthony Kennedy — and therefore the rest of the Court — was headed. Let’s talk about the oral argument in Plain English.

The arguments started with what many people refer to as the “marriage question” — whether the Constitution requires states to allow same-sex marriages. Representing the same-sex couples challenging the state bans, Mary Bonauto ran into tough questions from Chief Justice John Roberts and Justices Samuel Alito and Antonin Scalia. Roberts suggested that adopting Bonauto’s position would “redefine” marriage, adding that “every definition I looked up until about a dozen years ago” defined marriage as a union between a man and a woman. The plaintiffs could not have been encouraged when Justice Anthony Kennedy, who is probably their best bet to join the Court’s more liberal Justices to strike down the bans, echoed this idea. He told Bonauto that the traditional definition of marriage has been around for millennia, but it has only been a little over a decade since the Court held that Texas could not criminalize sex between two consenting adults of the same sex. That may be a long time for scholars, he pointed out, but it isn’t very long compared to the big picture, and “it’s very difficult for the Court to say we know better.

[…] Arguing on behalf of the federal government in support of the plaintiffs, U.S. Solicitor General Don Verrilli faced a similar barrage of questions from the Court’s more conservative Justices during his fifteen minutes at the lectern. In particular, Justice Kennedy reminded Verrilli that in an earlier case, the Court had indicated that it should define a “fundamental right” in “its narrowest terms” – a precedent that would not necessarily bode well for the plaintiffs. What, he asked Verrilli, should the Court do about that rule in this case? As he had during Bonauto’s argument, Justice Scalia then suggested that the Court should leave the issue for “the people” to decide, but Verrilli countered in his final remarks that the plaintiffs in the case deserve to have their constitutional rights now, without being required to wait to gain public support.

[…] [John Bursch, the former solicitor general of Michigan] spent most of his oral argument time sparring with the Court’s four more liberal Justices — Breyer, Ginsburg, Kagan, and Sotomayor — about the states’ rationale for prohibiting same-sex marriage. Bursch maintained that the states were not limiting marriage to opposite-sex couples because they wanted to confer second-class status on same-sex couples, but because of society’s vision of marriage as an institution centered around having children and encouraging parents to stay married and bonded to their children. The idea that marriage is about love and commitment is important, he said, but the state doesn’t have any interest in that idea. All four of the more liberal Justices seemed highly skeptical of his justifications. How, Justice Ginsburg asked, does allowing same-sex marriage take anything away from opposite-sex couples? Being married, Justice Sotomayor pointed out, doesn’t stop parents from getting divorced and abandoning their children. Justice Breyer chimed in, observing that a “very high percentage” of opposite-sex couples don’t have children, while a similarly high percentage of same-sex couples do.

So where does this leave us?

It leaves us to wait, but we won’t have to wait long.

A decision from the Supreme Court of the United States is expected before its recess in June.

Love Must Win. Love Can’t Wait.

Today is the day!

Today, this moment — this moment is the moment for which April DeBoer & Jayne Rowse (and the dozens, hundreds, nay thousands of families just like theirs in Michigan, Ohio, Kentucky, Tennessee, and around the country) have waited. As we are seated in the hallowed halls of the Supreme Court of the United States, arguments have begun.

In the case of Obergefell v. Hodges:

The argument is bifurcated.

Mary L. Bonauto, a prominent gay rights advocate who was instrumental in establishing a right to same-sex marriage in Massachusetts, will first take the podium to present before the nine Justices the plaintiffs’ stance on the core question of whether states must issue marriage licenses to same-sex couples. Then will appear Solicitor General Donald B. Verrilli Jr., representing the Obama administration, before Joseph Whalen comes to defend the same-sex marriage bans in place in the Sixth Circuit.

Later, Douglas Hallward-Driemeier — a former assistant United States solicitor general — will take to the floor to argue for the position that states must recognize legal same-sex marriages performed elsewhere. Joseph Whalen will again argue this point for the defendant.

In all, the arguments will last two-and-a-half hours.

A decision can be expected in June.

Follow The New York Times for live updates.

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. 

Local College Student’s Nightmare Ends.

In November of 2014, Nessel and Kessel Law began our representation of a local college student who felt he was being targeted because of his homosexuality.  Briefly, the facts of the case are as follows; the week before the incident in question Mr. McMurray had been assaulted by a number of other students.  After the assault, Mr. McMurray called the police and made a report.  Several days after making the report Mr. McMurray was confronted by the complaining witness in this case.  The complainant showed up, unannounced, at Mr. McMurray’s dorm room and an altercation ensued.    Here is a link to the previous blog post on the case. 

Our client was charged with Assault by Strangulation, a felony charge with a maximum punishment of up to 10 years in prison.  For any of us, especially a young man, just starting college with a spotless record, this charge would cause an incredible amount of nervousness and anxiety.  After being charged, our client was suspended from school, expelled from school, faced harassment (both in person and in social media), all while being terrified of being sentenced to prison. 

Thankfully, after months of negotiations, we at Nessel and Kessel Law are happy to report that this case has come to a conclusion.  The felony charge was dismissed, in exchanged for a plea to a very low-level misdemeanor.  But more importantly, the client will have the conviction suppressed his record completely clean after completing a brief term of probation.  It is important to note that this resolution could not have been reached without the cooperation and assistance of the very hard working and fair minded prosecutor who was handling the case.  Equally important is the idea that the Wayne County Prosecutor’s Office is open to the understanding of the plight of members of the LGBT community. 

At Nessel and Kessel Law, we are intensely committed to the protection of the rights of members of the LGBT community.  Will have never, nor will we ever, shy away from a fight involving the defense of those who are being discriminated against because of their sexual orientation or gender identity.  Currently we are in the middle of a fight over the constitutionality of Michigan’s ban on same-sex marriage.  But denial of the right to marry is not the only way in which LGBT rights are being denied and is not the only way in which member of that community are being discriminated against.  Thankfully, we at Nessel and Kessel Law are committed to fight for the rights of all members of the LGBT community.

 

 

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.