Paula Tutman's blog from March 7, 2014

Friday March 7, 2014
9:44 Paula Tutman:
Good morning. It's Paula Tutman, in again for Roger Weber. I'll be blogging througout the morning on the closing statements in the same-sex parenting trial in Federal Court in Detroit. Same rules apply. Don't hold my spelling against me, please. I'm moving fast. I'll try not to bore you with stuff that makes you go, "zzzzzzzzzz". And I'll try to give you a sense of what's going on inside the courtroom, with a little flavor from the media room.

Opening salvo begins at 10am.

9:59 Paula Tutman:
All Rise, the Judge is on the bench.
10:01 Paula Tutman:
Ken Mogill is one of the Plaintiff's attorneys. He's going to start the closing. We can see April Deboer at the plaintiff's table. She seems upbeat and smiling.

"The promise of equality is the promise for America."

Is the opening statement.
10:03 Paula Tutman:
"2600 same-sex couples are raising nearly 15-thousand children.

To be gay for far too long has been the bases for societal inequality.

People could get fired from their jobs, barred from Federal employment and discriminated against in hateful ways.

Equality before the law does not exist for same sex couples like April and Jayne, the door is barred from one of life's most cherished institutions because they love the wrong kind of person."

10:04 Paula Tutman:
"No other group in society is made to establish parenting competence. So deny gay and lesbians is a denial of equal protection."
10:06 Paula Tutman:
" Even a prisoner who is never allowed to have physical contact with a spouse is allowed to marry."
"No religious authority has a right to impose on the conditions of marriage."
"Civil law bars religion from intruding"
10:08 Paula Tutman:
Right now Mogill is stating some prior case law.
10:10 Paula Tutman:
Relief should also be granted to plaintiffs, because no other group is required to establish parenting competency as a condition to marry. There is no legal obligation to procreate when married. If the right to marry was limited to people who will reproduce, marriage would be limited to the very wealthy and educated.
10:10 Paula Tutman:
The sterile and the elderly are allowed to marry.
10:10 Paula Tutman:
There is utterly no rational basis for Michigan's ban on same sex marriages.
10:11 Paula Tutman:
The testimony showed that the STATES witnesses are part of a fringe fighting desperately for inequality.
10:13 Paula Tutman:
There's a strong consensus in scientific communities that the outcomes of children are similar to those of opposite-sex parents.

He's, in essence, talking about step children, foster children, children of divorce and single parent families... have dynamics that can't be measured by science.
10:15 Paula Tutman:
It is well established what best predicts positive development with children has nothing to do with sexual orientation of the parents. What counts....the quality of the relationship with the parents. The quality of relationship with parents and child.. Good mental health for the child. Regardless of family type there are broad variations across families with roles and styles.

There is no single correct parenting model and certainly not Ozzie and Harriet style parenting.

10:17 Paula Tutman:
Right now, Mogill is debunking the debunking. He's talking about the small studies and big studies that basically don't mean much.
10:22 Paula Tutman:
Mogill: Consider the bigotry associated with any of the State's witnesses. See what adds up and what doesn't.

[This is important because the State's star witness yesterday, Dr. Doug Allen who worked to dismantle many of the studies that show there is "no difference in child outcomes with same-sex parents" eventually admitted that he had deep religious biases against homosexuals.]
10:24 Paula Tutman:
Mogill is now working to dissect Dr. Allen's testimony and credibility of his studies. He's poking holes in his science.
10:26 Paula Tutman:
Even more FRAUDULENT then Professor Allen's presentation was Prof. Regnarus's (sp) assessment. He said few studies are more reviled.
10:27 Paula Tutman:

Mogill is now showing how the religious and social bias of the scientist shows the study was designed to have skewed results.

10:28 Paula Tutman:
Backstory: Profs' Doug Allen and Mark Regnerus both testified to their own studies that showed there were negative outcomes when children grew up in same sex households... both profs. were found to have deep-seeded biases AGAINST homosexuality.
10:30 Paula Tutman:
They want to cast this matter as a social science experiment. Life is not an experiment. It's a reality. This case is about real people and real children's lives. Lesbian and gay couples exist. And the question if they are entitled to the same rights as opposite sex couples... goes much deeper than any social science experiment.
10:31 Paula Tutman:
These children will be harmed by their parents to provide them with extra benefits if the law doesn't change. The law will not discourage heterosexual couples from marrying, having children or divorcing. There's absolutely no evidence that gay couples will harm any other couples marriage in any way. And the STATES arguments to the contrary are irrational.
10:33 Paula Tutman:
We have the burden of proof in this matter and we've met it.
10:34 Paula Tutman:
Fundamental rights may not be submitted to vote, they depend on the outcome of no election, according the Supreme Court.

[Mogill addressing the ban imposed by Michigan voters in 2004]
10:35 Paula Tutman:
Mogill is now expressing that the pool of homes for foster children would expand by allowing gays to marry.

It is irrational and cruel that there is one circumstance that a parent cannot adopt a child...because the non-legal parent can't adopt if the parent dies.
10:36 Paula Tutman:
Mogill now takes on TRADITION

10:37 Paula Tutman:
The whole notion of a traditional marriage is historically inaccurate. There is no single definition of marriage. It's an institution that has evolved over time.
10:38 Paula Tutman:
Today, marriage, as it has evolved, as it exists as a matter of law... it is an entirely gender neutral institution.
10:40 Paula Tutman:

Mogill brings up no-fault divorce, allowing people of different races to marry, the changing role of women in the household with equal rights for women. "In fact, time has shown that the tradition most important in marriage is the tradition of being able to change with time and social conditions. The capacity for change has been of core marriage in order for marriage to thrive and survive"

10:40 Paula Tutman:
Next he discusses Tradition and the Law.
10:41 Paula Tutman:
Giving us some case law. I'll get to meat...soon
10:43 Paula Tutman:
How does this court decide if we're at a tipping point if a rule that has been in place throughout American history is at a point that as a matter of Constitutional law must be discarded. As a matter of Constitutional interpretation, when an emerging ideals provides us with a well emerged awareness (of wrong doing) we must act Constitutionally.
10:44 Paula Tutman:
April is crying in court.

10:44 Paula Tutman:
Mogill's voice cracks as he discusses the love of people and how they should be able to have the gift of marriage.
10:45 Paula Tutman:
This has clearly hit an emotional cord with Apri. We can't see Jayne's face, but this has touched April deeply.

10:45 Paula Tutman:
Mogill wraps up saying that he hopes the judge finds the marriage band unconstituional.

10:47 Paula Tutman:
Attorney, Michael Pitt is speaking now. He's the attorney for Lisa Brown the Oakland County Clerk. She's the one who would have to issue marriage licenses.
10:48 Paula Tutman:
The Oakland County Clerk says the Constitution does not allow her to discriminate against any couple wishing to wed by race, religion, political affiliation, etc. If the band is lifted she will issue licenses to qualified same-sex couples. She is ready now to carry out this duty and will begin issuing licenses at the moment she's able to do so by law.
10:49 Paula Tutman:
The US Constitution says that people have basic fundamental rights and those rights should not be submitted to a vote.
10:51 Paula Tutman:
Lisa Brown, the Clerk knows that committed same sex couples live together as a family sometimes for decades. That these committed couples raise children together, help each other in time of illness and at the end of life provide comfort and say goodbye. It is the intimate relationship that should be protected by the Constitution is at the core of our liberty.
10:53 Paula Tutman:
The court and the State must adopt to this new reality. The State through its experts have not challenged this reality. Instead the State has engaged in breathtaking hypocrisy.
Under the State's definition, a post menopausal woman or and a sterile man unable to procreate do not have a right marry.

10:55 Paula Tutman:
She and the other 82 clerks in Michigan do not inquire if a couple wants to have children. She doesn't make a judgment on if the union will be good or bad for children. The right to marry the person of one's own choice is our notion of liberty, the County Clerk may not interject personal opinion. Right now she is force to impose a judgment on the validity of love. She no longer wishes to that.
10:55 Paula Tutman:
This State's sanctioned humiliation must end and must end now.
10:57 Paula Tutman:
So this is the attorney for the Oakland County Clerk representing the sentiments of his client who wants to be able to issue marriage licenses to same-sex couples and he's urging the judge to comply with the changing tide.
10:57 Paula Tutman:
She urges the judge to act now and not wait for 25 years worth of more studies that don't amount to much.
10:58 Paula Tutman:
The State has not been able to site any evidence to justify its fears.
11:00 Paula Tutman:

Nothing I've heard in this trial has justified the State's fears that the outcome of a child is changed based on families with same-sex parents. The harm to same-sex couples and their children is real.
She urges that State officials not be able to interfere in any way with the marriage choices of couples. She urges (Lisa Brown) on behalf of all the County Clerks in the State of Michigan.
11:01 Paula Tutman:
The court order must make it clear that personal opinions or religious beliefs cannot preclude a clerk from providing a license to same sex couples.
11:02 Paula Tutman:
Case law....zzzzzzzzzzzzzzzzzzzzzzzzzzzz
11:04 Paula Tutman:
The essence of what the Clerk is asking the court to do is grant the injunction (againast the ban) so that couples at the earlies opportunity can marry and take advantage of State and Federal benefits. She is ready to do her duty at the moment the court will allow her to do that.
11:05 Paula Tutman:
If not now... when!!!! Time is of the essence.
11:05 Paula Tutman:
Okay, that was Michael Pitt, the attorney for Oakland County Clerk, Lisa Brown.

State attorney, Kristin Heyse is now at the podium.
11:07 Paula Tutman:
After listening to closing statement it's clear there's a lot of emotion. It would be easy to get lost in that emotion. This is a rational basis case. One question. Is there any reasonable bases that a voter could say that marriage is between a man and a woman.
11:08 Paula Tutman:
Kristin Heyese: This case is not about the religious beliefs of the witnesses and experts, it's about science. The fact that someone has deeply held beliefs does not mean they can't be a good scientist.
11:09 Paula Tutman:
It's a good thing for a child to have a mom and a dad. It's rational to believe that society should promote that idea. 2.7 million voters who reached the same conclusion that (same-sex marriage should be banned)... the plaintiffs have not met their burden.
11:10 Paula Tutman:
Their votes ought to count for something.

Did plaintiffs' prove that there is no rational reason for the amendment..they did not.
11:11 Paula Tutman:
We (the State) showed there are rational reasons the ban should stay in place.

(paraa-phrasing here) this is going fast.
11:11 Paula Tutman:
Because there are rational reasons for it, the ban is not unconstituional. Moms and Dads are important. And the importance of mom and dads is real.

Gender diversity with parents is too new.
11:12 Paula Tutman:
Each gender brings something different to the table of parenting and that's a good thing.
11:13 Paula Tutman:
Mothers are more physically affectionate. Fathers are more task oriented. Men and women are different. Mothers and fathers are not interchangeable.
11:14 Paula Tutman:
The ideal environment for raising a child is a father and mother... particularly if those parents are married. The people's decision that encourages the raisin of children by a biological mother or father is not unreasonable.
Marriage between one woman and one man has ideals. This is not to denigrate some, but to suggest that there is an ideal for raising children.

11:14 Paula Tutman:
There are benefits to a child being raised by a mom and a dad.
11:16 Paula Tutman:
Everyone in this child agreed that same-sex marriage is new in this world and this country. Plaintiff's claim there is no historical definition of marriage. But experts have said that there is an historic definition. There is no comprehensive study done to date actually raised on same-sex couples. So the evidence supports that the voters of Michigan could define what marriage is, until there is more information.
11:18 Paula Tutman:
Plaintiffs want the court to believe this issue is settled and not debatable. If this trial has proved anything its that this is not settled and it's still debatable. If it's still debatable, the court must rule in favor of the State.
11:18 Paula Tutman:
There are studies that have found differences in outcomes (in which children did have changed outcomes with same-sex parents).
11:19 Paula Tutman:
Take a moment and breathe. We're going through more case law. I'm back to you when something substanative is said.
11:21 Paula Tutman:
Right now, Heyse is going over the 59 or so studies on child-outcomes. They were small and hard to get accurate scientific data.
11:24 Paula Tutman:
Very few studies actually varified outcomes of certain children.

[Basically she's attacking the validity of many of the experts presented by the plaintiffs.]
11:25 Paula Tutman:
She's not talking about her experts who did large scale studies and found that there were negative outcomes in children when raised by same-sex parents.
11:26 Paula Tutman:
She's quoting a study of more than 200 young adults.

Those children who identified parents involved in a same-sex relationship...self-reported outcomes then those whose parents were married.
11:28 Paula Tutman:
No existing study bears the ability to locate and track children raised continuously by gay couples and compare it to opposite-sex couples. It's too soon for the state to alter its decision on what constitutes marriage because more, reliable study needs to be done on the long term outcome on children. (paraphrasing)
11:29 Paula Tutman:
She's now quoting from the ALLEN study.

The odds of children of same-sex couples are 15 % more likely to be held back from school.

children of hetero couples are 25 percent more likely to progress normally in school.
11:30 Paula Tutman:
Check that 25 percent...number. It may have been 23 percent. So let's just say nearly a fourth of students are likely to not do well in school according to the ALLEN study.

11:30 Paula Tutman:
If you missed yesterday, I'll find those actual numbers for you when we get a break.
11:32 Paula Tutman:
Heyse: What's needed to make a conclusion is a large, long term, national study tracking children of same-sex couples. No such study exists. This case is about science and date... not religious beliefs.
11:32 Paula Tutman:
Heyse: Right now it's j just too early to know. For that reason Michigan voters acted cautiously before redefining marriage.
11:33 Paula Tutman:
Heyse: There is evidence of instability of same-sex couples.
11:35 Paula Tutman:
Back to Case Law stuff. I'm going to take a moment to dig up that Allen study for you.
11:36 Paula Tutman:
Here's the Allen study in case you missed it yesterday.

11:37 Paula Tutman:
Despite the strength in our case, we recognize there are no guarantees. If you rule in favor of the plaintiffs we do request a stay. A stay is imperitive to avoid confusion that's happened in other states when a stay has not been granted.
11:39 Paula Tutman:
Final point for Heyse:
this decision to maintain the definition of marriage as being between a man and a woman is a decision made by Michigan voters and it was one that they made with reason. (paraphrasing)

This court cannot interfere with the States authority unless there's a clear it's unconstitutional . But if we've shown anything, we've shown that nothing is completely clear. (paraphrasing again)

The marriagne ammendment is due porcess, something Federal courts rarely intrude upon.
11:40 Paula Tutman:
In conclusion, if reasonable people can disagree the court must uphold the marriage ammendment.

11:41 Paula Tutman:
This is critical to our freedom to govern outselves. So I ask again, let the people decide. We ask you to rule in favor of the state.
11:41 Paula Tutman:
Mogill gets a five minute rebuttal.

11:41 Paula Tutman:
Mogill: Nothing Ms. Heyse has said changes the law. So there is no need for rebuttal.
'Hmmmm, interesting.
11:42 Paula Tutman:
The plaintiff attorneys feel they have a strong case. They didn't use their time for rebuttal.

11:45 Paula Tutman:
Judge is talking. Thanking staff, etc.
11:46 Paula Tutman:
Judge is thanking media... wooooo hooo!!!!

11:47 Paula Tutman:
Now the judge is thanking the judge!!!!

"I have two duties, I have to make finding of facts and conclusions of law."
11:47 Paula Tutman:
Judge: Each side has position. I have a lot of things to do. I have a lot of reading to do. I have decision making to do. I will listen to the testimony, I have to read the witness books, determine how much weight to give each witness... how credible they are... and then I have to apply that to the law.
11:48 Paula Tutman:
Judge: How do I do that? I have to go through it and it will take a lot of time.
11:48 Paula Tutman:
Judge: I'm going to read this and go over it and my clerks will help me. We have a lot of reading to do. There are a lot of cases (case law) we have to read each case...etc.
11:49 Paula Tutman:
[NOTE] no case is an island. All cases affect all other decisions in our system of justice. Each case sets precident, etc.
11:50 Paula Tutman:
There's no jury, the judge is the decision maker and so he's explaining his system of due dilligence and basically letting us know he will be thoughtful and deliberate and he knows he can't do this in a week.
11:50 Paula Tutman:
Judge anticipates he will have a decision by week after next before coming to a decision.
11:51 Paula Tutman:
When he makes a decision, he will write his opinion and immediately post it on the court's website.
11:52 Paula Tutman:
What that means is he will reconvene court, he will write his opinion and it will be posted on the court's website. That means our assignment editors Corey McIssac and Jason Laverty will have their eyes pasted to the website so we don't miss anything.

Thanks everybody. Have a great day.