As Western Journalism reported, a group of lawyers and advocates presented a brief to the Sixth Circuit U.S. Court of Appeals in an attempt to call a Michigan judge’s ruling on same-sex marriage into question. The first of three arguments made in the court document is that District Judge Bernard A. Friedman’s decision was made based on social science and the testimony of a biased psychologist rather than legal precedent.

The second argument included in the brief is a takedown of Friedman’s assertion that a gay marriage ban violates the 14th Amendment.


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In making this case, the petitioners wrote that the court overruled what should have been a binding vote by the people of the state to enact a constitutional amendment protecting traditional marriage. With the ability to reverse “thousands of years of revealed truth as confirmed by human experience,” the brief noted that “one would have hoped that the district court would exercise judicial restraint.”

Instead, Friedman acted on emotion rather than a rational consideration of the facts, the document argues. The judge’s own words are included in the brief as evidence of his “poetic appeals” to further a social agenda.

“No court record of this proceeding could ever fully convey the personal sacrifice of these two plaintiffs who seek to ensure that the state may no longer impair the rights of their children and the thousands of others now being raised by same-sex couples,” the decision read. “It is the Court’s fervent hope that these children will grow up ‘to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”

Friedman’s own opinion on the issue was also explored in the brief, including the fact that fellow U.S. District Judge Judith Levy – a lesbian – began working for him nearly 20 years ago. In the intervening years, she has had two children via artificial insemination to whom Friedman reportedly acts as a grandfather figure. According to the petition, Levy took Friedman’s decision a step further by certifying same-sex marriages despite the fact Friedman only prohibited the state’s governor and attorney general from enforcing the marriage amendment.


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The plaintiffs who brought their case before Friedman had no expressed intention to challenge the existing amendment, the brief claims, noting that the judge acted on his own accord to take his decision in that direction. Even though no “triable issues of fact” were presented, the brief explained, he disregarded motions for summary judgment in favor of making a statement with his decision.

Friedman reportedly failed to adequately explore whether the equal protection clause of the 14th Amendment applies to sexual orientation, instead opting to make his the only opinion that matters in deciding who may marry in his state.

“Not once did Judge Friedman address the language of the Fourteenth Amendment,” the document stated, “beyond reciting the words ‘due process’ and ‘equal protection.’”

In overlooking the actual text of that amendment, the brief claims, he was able to ignore the fact that it makes no mention of homosexual marriage.

“Without analysis or explanation, Judge Friedman presumed that a person in a same-sex relationship is ‘similarly situated’ to a person in an opposite-sex relationship,” the brief explained, going on to cite “three distinct biological and physiological dissimilarities between same-sex and opposite-sex couples that demonstrate that a person desirous of marrying another person of the same sex is not similarly situated with a person who is desirous of marrying a person of the opposite sex.”

The three points relate to biological gender classification, the existence of complementary sexual organs, and the inability of procreation between same-sex partners.

While the judge acknowledged that citizens of the state should be able to decide such matters for themselves, the brief concluded that he “paid only lip service” to the idea of federalism, concluding his decision will doubtlessly “lead to challenges to state laws prohibiting polygamy and even incestuous couples.”

Photo credit: WehoCity (Flickr)


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