Michigan’s other marriage debate.

The Mitten Memo. A blog by Nick Krieger. 

In just over a week, the United States Supreme Court will hear oral arguments in DeBoer v. Snyder, the Michigan same-sex marriage case.  Without question, the case presents significant constitutional and family-law issues.

But at the same time, there is another marriage debate playing out in Michigan.  This debate has none of the publicity or fanfare of DeBoer, but presents legal questions that are nearly as significant.  The issue?  Whether a brother can legally marry his sister.  And the answer is not as simple as you might think.

In Stewart v. Garrett, filed last month in a Detroit-area circuit court, a couple’s adopted son is seeking to marry the couple’s biological daughter.  The adoptive brother and sister are suing the county clerk to compel her to grant them a marriage license.  It appears that the adoptive siblings’ parents are in full support of the proposed union.

Michigan’s marriage law states in pertinent part that “[a] man shall not marry his . . . sister.”  MCL 551.3.  But what does this actually mean?  The statute does not specify whether it applies only to siblings related by blood, or also to siblings related by adoption.  The question has never been definitively addressed in this state.

Courts in other jurisdictions have considered the question with differing results.  Consider the seminal Colorado case of Israel v. Allen.  In that case, Raymond had a biological son named Martin from a previous relationship.  Sylvia had a biological daughter named Tammy from a previous relationship.  Raymond met Sylvia and eventually married her.  After marrying Sylvia, Raymond adopted Tammy and became her legal father.  This made Martin and Tammy brother and sister under Colorado law.

Sometime later, Martin and Tammy fell in love.  They applied for a marriage license but their application was denied on the ground that they were siblings.

Martin and Tammy were not related by blood.  Nevertheless, the Colorado statute in effect at the time declared that a brother and sister “whether . . . by the half or the whole blood or by adoption” could not get married.

The Colorado Supreme Court ultimately sided with the young couple, ruling that the state statute could not be constitutionally applied to adoptive siblings under the Due Process Clause of the Fourteenth Amendment.  The court also found that the state’s rationale for prohibiting marriage between blood siblings—namely the risk of potential birth defects for children of the marriage—was not a concern in the case of adoptive-sibling marriages.

Different courts have reached the opposite conclusion.  For instance, in In re Marriage of M.E.W., the Pennsylvania Court of Common Pleas ruled that a man and woman who became brother and sister through the process of adoption were not entitled to marry.  The court held that “[t]o authorize and encourage marriages of brothers and sisters by adoption would undermine the fabric of family life and would be the antithesis of the social aims and purposes which the adoption process is intended to serve.”  And in State v. Gray, the Tennessee Court of Criminal Appeals observed that “Mississippi law allow[s] the marriage of a brother to his adopted sister but the same marriage is prohibited by the state of Tennessee.”

As explained above, the Michigan marriage statute does not state whether it applies only to biological siblings or also to siblings by adoption.  But the Michigan Court of Appeals has held that the purpose of Michigan’s adoption code “is to make the adopted child, as much as possible, a natural child of the adopting parents, and to make the adopting parents, as much as possible, the natural parents of the child.”  See MCL 710.60(1).  This reasoning strongly suggests that adoptive siblings should be treated the same as natural siblings for every purpose, including marriage.  After all, if an adopted child becomes “as much as possible, a natural child of the adopting parents,” then it would logically follow that the law prohibiting “[a] man” from marrying his “sister” would bar the parents’ adopted son from marrying their biological daughter.

On the other hand, given the fundamental right to marry protected by the Due Process Clause of the Fourteenth Amendment, it is arguable that Michigan’s statute prohibiting a brother from marrying his sister is unconstitutional as applied to adoptive siblings.  Indeed, this was one of the grounds cited for invalidating the Colorado statute in Israel.

It is worth noting that although the marriage of adoptive siblings may seem bizarre or even disturbing to us today, the practice has not been uncommon throughout history.  Professors Sofie Remijsen and Willy Clarysse of the University of Leuven in Belgium report that “marrying an adopted son to a natural daughter was a widespread family strategy documented all over the eastern Mediterranean [region]” during ancient times.  A bit closer to home, William Tecumseh Sherman (later a famous Civil War general) married his “adoptive” sister Ellen Ewing in 1850.  Although it does not appear that Ellen’s biological father Thomas Ewing ever legally formalized his adoption of young Sherman, it is beyond dispute that everyone considered Sherman to be Ewing’s son.  Ewing, a former U.S. Senator from Ohio, was serving as Secretary of the Interior at the time of the wedding, which was attended by numerous dignitaries including President Zachary Taylor.  Historians report that they have never discovered any contemporary objections to the marriage.

The litigation in Stewart v. Garrett has only just begun, and it is unclear how the circuit court will ultimately rule in the case.  But it is unlikely that this issue will simply go away after the circuit judge hands down her decision.  Perhaps the court’s ruling will be appealed.  Or maybe the Michigan Legislature will become involved, choosing to amend MCL 551.3 to clarify whether it applies to adoptive siblings.  Either way, we will almost certainly hear more about the issue of adoptive brother-sister marriages in Michigan.

Nick Krieger is a graduate of Ludington High School, earned a bachelor’s degree from Michigan State University, and holds a law degree and master’s degree from Wayne State University Law School.  Nick works as an attorney for the Michigan Court of Appeals and owns a home in Ludington. The viewpoints expressed in The Mitten Memo are Nick’s own, and do not reflect the views of the Michigan Court of Appeals or Media Group 31, LLC and its affiliates: Mason County Press, Manistee County Press and Oceana County Press.  Contact Nick via e-mail at nickkrieger77@gmail.com or follow him on Twitter at @nckrieger.