Updated, 4:30 p.m. EDT
U.S. District Judge Bernard Friedman said he won’t make a decision without hearing testimony from experts on whether there’s a legitimate state interest in banning gay marriage. He scheduled a trial for Feb. 25.
“I wish I could give you a definitive ruling. … There are fact issues that have to be decided,” Friedman said.
Friedman clearly caught the lawyers off guard. They had agreed to have him decide the issue on arguments and briefs. There was a groan in a nearby room where dozens of people were watching a video feed.
Two Detroit-area nurses in a lesbian relationship, Jayne Rowse, 49, and April DeBoer, 42, wanted to adopt each other’s children, not rewrite Michigan law. But their lawsuit took an extraordinary turn a year ago when Friedman suggested they refile it to cha llenge the gay marriage ban.
In doing so, they argued the state’s constitutional amendment violates the U.S. Constitution’s Equal Protection Clause.
A state constitutional amendment declaring marriage as between a man and a woman was approved by 59 percent of Michigan voters in 2004. Thirteen states and the District of Columbia allow gay marriage.
More than 100 people were in the courtroom Wednesday. Several dozen people in favor of gay marriage also rallied outside of the courthouse.
“This amendment enshrines discrimination in the state constitution for all time,” the couple’s attorney, Carole Stanyar, told the judge.
Moments earlier, she said U.S. history has at times revealed a lack of humanity, “but at times we right ourselves … and reaffirm the principle that there are no second-class citizens.”
An attorney for Michigan said the U.S. Supreme Court has recognized that states have authority to regulate marriage. Kristin Heyse noted that more than 2.5 million voters supported the amendment.
“The people of the state of Michigan should be allowed to decide Michigan law. This is not the proper forum to decide social issues,” said Heyse, an assistant attorney general.