Michigan Same-Sex Marriage Case Scheduled for Hearing

By: Timothy P. Flynn

Earlier this year, United States District Court Judge Bernard Friedman held in abeyance the case challenging Michigan's ban on gay marriage until SCOTUS decided the United States v Windsor case in June.  Now, in the wake of Windsor -which struck down the Defense of Marriage Act banning federal benefits to gay couples- a hearing has been scheduled for mid-October in the Michigan case.

April DeBoer and Jayne Rowse, a lesbian couple from Hazel Park, filed the federal law suit because Michigan law prevents them from adopting each other's children.  The Michigan Attorney General is opposing the suit, asserting the couple's claim merely seeks to avert a valid Michigan law: the 2004 constitutional amendment defining a legal marriage as solely between a man and woman.

This case has been attracting much attention with Judge Friedman allowing several groups to file briefs in the case.  The Michigan Catholic Conference, on one side, asserts that the 2004 Marriage Amendment advances a valid state interest: the preservation and proliferation of family life through traditional marriage.  On the other side, a group of law professors at the Cooley Law School, along with other constitutional law scholars from across the country, assert that Michigan's Marriage Amendment should be subjected to a "heightened scrutiny" on the basis the amendment does not advance a legitimate state interest.

Whatever Judge Friedman does in this case, his decision will be appealed to the Sixth Circuit Court of Appeals in Cincinnati and then on to the SCOTUS, with perhaps a post-Windsor companion case or two. We here at the Law Blogger knew that it would not be long before Michigan joined in the fray of what has become the civil rights issue of our time.

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Posted in: adoption,April DeBoer,Cooley Law School,DOMA,Jayne Rowse,Judge Bernard Friedman,Marriage Amendment,Michigan Catholic Conference,same-sex marriage,United States v Windsor

Same-Sex Marriage Cases in the Michigan Mix

As the SCOTUS perpares to consider some momentous same-sex marriage cases this term in Washington, D.C., Michigan has a few cases of its own that deserve consideration.  Federal District Judge Bernard Friedman has recently taken one case under advisement in Detroit as he awaits direction from the SCOTUS on this issue; while the other case involves today's Up North wedding between two men, pictured at left, Tim LaCroix and Gene Barfield.

Michigan is an interesting state for the same-sex marriage issue to arise. In 2004, voters approved a constitutional amendment to ban same-sex marriage.  If SCOTUS declares a similar ban in California unconstitutional, the floodgates could be opened for same-sex couples.

In the case pending in the U.S. District Court for the Eastern District of Michigan, a gay couple first set out to challenge the adoption laws that they alleged discriminated against same-sex couples.  Their lawsuit then morphed into a challenge to Michigan's 2004 constitutional amendment which defines a marriage as between a man and a woman.  Plaintiffs in the suit are a lesbian couple from Hazel Park.

Defending Michigan's constitution is the Michigan Attorney General, who argues that the amendment does not discriminate against specific groups but rather, is merely "an affirmative statement about the virtues of traditional marriage".

Today's Up North wedding between the two men is scheduled to take place at an unknown location; presumably somewhere on the Odawa Indian Reservation or lands.  The same-sex marriage was endorsed by a close majority of the legislative body of the Indian Tribe.

Because the tribe to which the men belong is recognized by the U.S. Government, it is not bound by state law thus, the 2004 constitutional amendment does not apply to the Tribe.  Major-league loophole.

We here at the Law Blogger, like Judge Friedman, will be watching SCOTUS for its decision on the issue.

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Posted in: Gene Barfield,Judge Bernard Friedman,Michigan Attorney General,same-sex marriage,SCOTUS,Tim LaCroix

Are Digital Inspections Constitutional?

Whether a search of your computer is legal depends, in large part, on where the search takes place.  If you are singled-out at an international boarder, for example, you are going to be searched regardless of the presence of a "reasonable suspicion".

If you are in a place where you have a reasonable expectation of privacy, on the other hand, the Fourth Amendment to the U.S. Constitution requires probable cause prior to a justified police search of your digital data.

This issue is coming-up with increasing frequency as people travel with their digital lives at their side; and thanks to the increasing sophistication of law enforcement search methods.

Courts have determined that international borders are areas where government interests trump any reasonable expectation of privacy, if one even exists at all.  Customs agents at these boarders are trained to look for smugglers, terrrorists, and child pornographers.

The heightened search and seizure powers of Customs agents were tested in a recent case involving a local contract employee with the Walled Lake Consolidated Schools.  Two years ago, Craig Aleo was intercepted at the US-Canadian border in Buffalo, NY.  Customs agents conducted a digital inspection of his laptop and discovered images of child pornography; some of them made and distributed by Aleo.

The former Davisburg resident and Walled Lake schools employee was sentenced last January by federal judge Bernard Friedman to 60-years in federal prison. 

While no one wants their digital life disturbed when traveling through borders, particularly lawyers with briefcases of confidential goldmines, neither does anyone feel sorry for child pornographers or terrorists.

In another recent case, this one involving a suspected "terrorist", the former Muslim chaplain at Guantanamo Bay was routinely subjected to digital inspections whenever he re-entered the US.  Once, upon being searched and released, the Muslim chaplin discovered that the Customs agent left a forensic scan disc in his computer.  Although the chaplain was not a terrorist, he fit the profile, so the digital inspections were conducted.

A thorough digital scan of a lap top computer can take more than 3-hours, and that's without securing a warrant.  Forensic hard-drive copies take even longer to produce.

Digitized information does not always carry signs of illegality like child porn images.  Evidence of terrorism, for example, is often well-hidden and encrypted in the machine's hard-drive. 

The National Association of Criminal Defense Lawyers has taken the position that laptop computer searches conducted at international borders are "non-routine" and thus should require some modicum of articulable suspicion. 

Such articulable suspicion is required by highly invasive search modes such as the search of a person's ailmentary canal.  A laptop search is probably even more intrusive as it encompasses your entire being, both personal and professional.

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Posted in: articulable suspicion,constitutional law,criminal law,digital inspection,Fourth Amendment,Judge Bernard Friedman,law enforcement,probable cause