The Minnehaha Supreme Court

By Jorie Schwab

Jorie Schwab is a senior and the editor and founder of the online Creative Arts Magazine. This is her fourth year writing for The Talon. Jorie is also a staff writer and section editor for online news source The Prospect, and enjoys working on fiction novels and short stories in her time off from journalism. She is also a high school athlete and avid reader. Her favorite book of all time is The Count of Monte Cristo by Alexander Dumas.

Posted: May 21, 2015

14th amendment

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


On April 28, Nathan Johnson’s senior government class held court (literally) in the Anderson Conference Room. The class acted out a case occurring in the Supreme Court the same day, DeBoer vs. Snyder, a case examining the legality of state bans based on sexual orientation as based on the 14th Amendment’s due process and equal protection clauses.  The class participated in various roles with four students acting as lawyers, nine as the justices and the others filling various other roles in the “court room.” What follows is a news report on the case as presented by Johnson’s 2nd hour government class.

Lawyers debate same-sex marriage in Court

A possibly historic case in the fight for gay rights in America appeared in front of the Supreme Court on Tuesday April 28. The case, DeBoer v. Snyder, was concerned with the legality of a Michigan state ban on the adoption of children by homosexual couples, and subsequently a current Michigan statute against gay marriage. The plaintiff in this case, April DeBoer and her partner, Jayne Rowse, already have three adopted children between them. Because of the state bans, they felt that they and their children were being denied critical rights.

The court room bustled with activity as the attorneys and Justices settled into position to begin the hour-long process of hearing speeches by the attorneys on both sides.

Same-sex family life

First, were lawyers Payton Kinkead and Kalli Gillmer, standing for DeBoer. Kinkead began by familiarizing the court with the specific wording of the Michigan bans, then made her first statement about how the laws have denied same-sex couples the rights that are supposed to be inherent in American life. She claimed the statutes limited liberty and freedom, and were a direct affront to the constitution.

Lawyer Gillmer took the stand next, the justices remaining quiet. She began with a plea to the court to consider the children of same-sex couples such as DeBoer and Rowse. She used social-science documentation to make the argument that the bans were negatively affecting children involved by denying them the a traditional marriage setting.  She recognized some opponents claim that same-sex marriage is harmful for the child, but moved on to list evidence that the outcome of the child depends on the character of the parents rather than their sexuality.

Justice Andrew Wintz interrupted at this point, asking the attorneys how they would have the court define marriage. Kinkead responded  by returning to the idea that the social and legal benefits of marriage should be extended to all, avoiding the question. Chief Justice Noah Fabie then took up the questioning, asking the attorneys about the possibility of legalizing gay marriage leading to polygamous relationships. Again,  Kinkead skated around the question, replying that polygamy was irrelevant to the case at hand then continuing with the main points of her argument.

Kinkead began to talk excitedly as she returned to the dangers the bans have on children. Especially in case of emergency, she claimed, when the same-sex couple is not regarded as the true “parents” of the children, at least one parent can be easily left out. She also stressed that in the case of one or both of the same-sex couple’s death, the children would not get any legal protection or aid.

She moved onto how freedom of marriage is fundamental to the pursuit of happiness and the principles of the 14th amendment. The bans denied Michigan’s citizens of fundamental human civil rights without the due process of the law.

At this point the justices began to get actively involved. Justice Johnny Webb spoke first, asking about the possible hindrance to the children’s life in this case without a father figure. Kinkead responded by saying that the child’s health is dependent on having strong parental roles, not necessarily defined by specific gender tropes such as dad or mom.

Justice Fabie then asked about the home life of the children of same-sex marriage. Kinkead responded that the health of the home life is determined by the people in the home, not their sexuality.

An economic view

The next major point was economical. Kinkead said that economically, the ban hurts American producers and businesses. She cited a coalition of national brands, such as Starbucks and Amazon, going on to point out that these million/billion dollar corporations with thousands of workers and analysts have come to the conclusion that the ban hurts the workforce by placing discriminatory bars on employees. She continued the argument by explaining how the adverse effects of the ban ripple throughout corporations by adding administrative costs, claiming that one billion dollars per year is lost in these legal struggles.

Justices Hans Carlson and Fabie interrupted to ask what exactly was unconstitutional about the economic problems the bans caused. Kinkead admitted the example was just to show the pain of the ban, not the unconstitutionality, which was more based on the 14th amendment’s equal protection and due process clauses that were being misused.

Gillmer’s final argument was that the Michigan bans are unconstitutional because they are “bigoted and repressive,” and block fundamental rights.

Define the criteria

Justice Nathan Johnson interrupted and asked  if the court should undermine the democratic process that put the bans into place. Kinkead responded that she would, comparing the Michigan bans to the Jim Crow Laws of the past. In the case of severe discrimination, the court had no choice but to undermine the process in order to ensure the American people’s freedom.

Justice Webb continued by asking if the decision could possibly set the precedent of removing powers reserved for the states in the constitution. Kinkead claimed the state has failed in this case and thus has lost the ability to make the decisions.

Justice Johnson then returned to the question earlier raised about polygamy that Kinkead avoided, asking with force for an answer to the worry that allowing same-sex marriage will lead to allowing any type of legal union in the future. Kinkead avoided it again, voicing hesitant phrases that seemed to imply she was unsure.

Justice Harris Worthman then interjected to deny the stability of the polygamous relationship while also justifying the grounds on which gay marriage should be established.

Justice Johnson continued the rough questions by asking if this casewould harm the stability of marriage down the road. Kinkead claimed that the issue is a case by case issue, and in this case the stability of same-sex marriage has been proven so it should be legal. She continued that if in the future a polygamous relationship could also be proven stable, it as well should be legalized.

Justice Johnson moved as if to continue this line of questioning but the gavel was struck ending the DeBoer side’s argument, to what looked like immense relief on Kinkead and Gillmer’s faces.

On the defensive

The defendant’s lawyers then approached the stand to begin their case rebutting DeBoer’s positions. Attorney Gunnar Nelson began by asking the court to look at the case as a question about how the judicial system works. He stated that the power to decide about Michigan’s adoption and marriage laws is a state right, delegated by the Constitution and the organization of the American federal government. He continued by explaining that the 14th amendment does not dictate the marriage views. Nelson stated that the case is not a moral question but a question of judiciary.

Nelson then moved out of the way as Lawyer Cole Dennis began. His arguments were lit up with passion as he spoke about the rights of the states, claiming liberty is the principle at hand in the case. He explained how the democratic process has allowed the legality of same-sex marriage in 37 states. But, he maintained that it is up to the states to continue to dictate this legislative authority.

Dennis stated that relying strictly on the court as DeBoer would supposedly do, weakens the constitution. He continued that America would become governed by a judiciary unelected by the people, forcing America to lose her fundamental liberty. Dennis siad that the only way to change is through public conversation, with as little judicial involvement as possible.

Dennis finally quieted, breathing heavily, as Nelson approached the stand. Nelson began an argument based on the detrimental effects of a same-sex marriage law down the road. He attempted to use the example of divorce to illustrate a point that laws in the past that have changed the traditional marriage structure have led to problems, but the example did not convince the justices, as Justice Worthman finally interrupted asking why continuously changing marriage was wrong.

Miscalculated comments

Dennis then took over from Nelson, abandoning the divorce example and explaining that Michigan’s shows that the court does not have the constitutional right, now or ever, to change the definition of marriage. He expressed again that this a power reserved for the democratic process and the people.

Justice Worthman nodded his head in at least acknowledgement that the point has been noted, and Dennis continued with his next argument,  the 14th amendment. Dennis claimed the due process clause is only relevant for pieces of American life that are “deeply rooted” in American history, and according to him, gay marriage is recent issue.

Justice Worthman interrupted again, arguing that the issue is deeply rooted and that it’s been a big problem for a long time. He said the court does have the right to change marriage. Dennis agreed with Justice Worthman that homosexuals have been oppressed, but Dennis claimed they have been gaining rights over recent years, which proves his point that eventually the democratic process will fix the problem without involvement of the courts.

Justices Jamie Dovolis and Wintz interjected to argue the court does have the right to determine what marriage is as they did when they decided marriage was between a man and a woman in a previous case.

Justice Worthman followed Justices Dovolis and Wintz’s concerns by asking more bluntly what exactly the defendants would define deeply rooted as. Neither Dennis nor Nelson had an answer.

The real question

Dennis’ final argument was a return to what he calls, “the ultimate question.” That is, do the justices want to undermine the democratic process or do they want to uphold a legitimate judicial branch? He said that this case is not a question for the court system to answer. Dennis claims if the Supreme Court granted same-sex marriage it would be essentially passing legislation, a right not given or meant for them.

Justice Dovolis interjected to ask whether the majority is oppressing the minority in Michigan. He continued saying, is it not the job of the court to protect the “little man”? Dennis responded by returning to the democratic process. He claimed that the states were striving to fix this oppression, as is their right. The court, on the other hand, should only determine the constitutionality of the laws, not the morality of them. Dennis concluded by stating, “this is not a question of us vs. them. It is the question of what is constitutional. Michigan has voted to believe that same sex marriage would negatively affect Michigan’s society.”

The bell finally sounded and with the rustling of robes and the murmur of a long silent audience awakened, the debate ended. The Supreme Court will return with their ruling must likely in June.

Until then DeBoer and Michigan can only hope their attorneys convinced the justices to see their cases in the same way they presented them. Either way, the decision will be a landmark case in the gay rights campaign, either a major step forward or a large step back.

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