A "normal" woman has the right to marry anyone of her choosing. A woman with a disability should have the same right. In Michigan, such rights are protected by the Mental Health Code, by the Americans with Disabilities Act, by EPIC, and by the 14th Amendment to the U.S. Constitution.

A woman with a developmental disability should have the right to marry, and the right to choose her spouse, absent objective evidence proving that her choice in a particular case will result in an unreasonable risk to her health or safety. The role of the Probate Judge is to protect her right to an independent lifestyle without undue restrictions on her freedom.

It would violate her Constitutional rights to deprive her of the right to marry solely on the basis of her disability.

1. The Mental Health Code encourages independence and a normal life for persons who are developmentally disabled.

2. EPIC, the Estates and Protected Individuals Code, states that a spouse is first choice as a guardian.

3. The Mental Health Code indicates that the ward should choose his or her own guardian, and that the ward's choice should be given "due consideration."

4. The Americans with Disabilities Act promotes independence and the "least restrictive setting" for persons with disabilities.

5. The right to marry is protected by the U.S. Constitution.

6. Not being allowed to marry, and not being allowed to form an adult relationship with a member of the opposite sex, is tantamount to sterilization.

7. The State of Michigan lacks the authority to sterilize a developmentally disabled adult without a Due Process hearing showing the necessity for it in that person's individual case; all the more so, the State of Michigan may not delegate such authority to a Guardian without just cause.

8. MCL 551.6, the Michigan statute against marriage for an "idiot," does not apply to someone who has only a limited guardian.

9. Even if the "Idiot Law" applied to this case, the law is unconstitutional.

The Mental Health Code in Michigan encourages self-reliance and independence for individuals with developmental disabilities. Partial guardianship is preferred. See MCL 330.1602, which explains the purpose and basis for guardianship:

The Mental Health Code also demands that an adult with a developmental disability be allowed to live in the "least restrictive setting." This language is obviously aimed at preventing a person from being warehoused endlessly in institutions, when the person would prefer to live in the community instead. However, it also applies in a case where a young adult is living with his or her parents and wants to leave "home" to go out into the great wide world, go to school, get married, get a job, and so forth. The types of activities which a "normal" young adult would want to do can also apply to a person with a developmental disability. Living with the parents is usually more "restrictive" than living with a housemate, a friend, a spouse, or with other students at college.

At 300.1661, the Mental Health Code repeats this admonition in terms of fostering self-reliance and independence for the ward, so that an adult with a developmental disability will not suffer from being over-protected.

This is an important feature of the law. It is natural for parents to want their disabled sons and daughters to avoid unnecessary suffering on account of the stigma they face in society, and the very real fear that others may take advantage of an individual with a disability. However, parents in the role of guardian must remain vigilant to the person's opportunities for "regular living" which help the individual grow in the community. There has to be a balance between protection from unreasonable risks on the one hand, and letting the person make mistakes just like the rest of humanity, on the other hand.

What is a "social opportunity" within the meaning of MCL 300.1631? Surely the opportunity to get married and perhaps have children is the most important, most basic "social opportunity" which anyone could have. A guardian should be looking for social opportunities for the ward, perhaps introducing the person to a wider circle of friends, not standing in the way of a marriage which the person desires just because the guardian does not care for the individual's choice of spouse.

The "independence" theme is repeated in EPIC, the Estates and Protected Individuals Code, which discusses the need to encourage self-reliance for anyone with a mental disability. Obviously the Michigan Legislature holds this opinion about adults with developmental disabilities and also about adults with other mental disabilities.

Under EPIC, the Estates and Protected Individuals Code, the Probate Court ought to select the person's spouse as first choice if a guardian is needed.

This provision proves that the legislature not only contemplates marriage for people with mental disabilities, the spouse is given high rankings as the best choice to serve as Guardian, if one is needed. Where someone has offered to marry the individual, he or she should be elevated as a more serious choice in the eyes of the Probate Court, in determining who should serve as Guardian, depending on the facts of the individual case.

According to EPIC, if there is no spouse available to serve as Guardian, the next choice is the individual's adult child; and after that, the individual's parent or parents. 700.5313 (3) (b) and (c). In this case, there is a prospective spouse who may be willing to serve as Guardian, should the court find that he is an appropriate individual. Rather than shutting him out of the picture and forbidding the individual to marry him, the Probate Judge has an opportunity to select a Guardian, if one is needed, who might promote the individual's independence and self-reliance.

In many Guardianship cases, no doubt the parents step forward and are appointed as Guardians. However, there should be an independent hearing on this matter which is open to other possibilities, so that a Ward is not stuck with a knee-jerk decision to automatically appoint the parents when someone else would be more suitable. This should be decided on a case-by-case basis.

The Mental Health Code specifies that the ward's preference should be listened to in determining who should serve as a guardian, if a guardian is necessary. The Probate Court is obligated to question the individual and find out who he or she would like to have as guardian:

This statutory mandate is repeated in EPIC, MCL 700.5313, which makes it abundantly clear that the ward should have a strong say in who is appointed as his or her guardian:

The Probate Court is not obligated to appoint the parents as guardians, especially where a spouse or other individual is willing and able to serve in this role. The Probate Court needs to look carefully at a proposed Guardian's willingness to help the individual lead an independent lifestyle, and make his or her own choices. A guardian who wants to restrict the ward and restrict the person's social life is not a good choice.

It is worthwhile noting that although an individual may be found by a Probate Court to need a guardian, that same individual might have the "mental capacity" to sign a durable power of attorney. Michigan law has long held that someone might have the mental capacity to sign a Will, for example, but lack the mental capacity to sign an agreement related to a commercial transaction. Rice v. Rice, 53 Mich 432, 19 NW 132 (1884) (delusions of testator do not destroy his testamentary capacity); Acacia v. Jago, 280 Mich 360, 362, 273 NW 599 (1937) (appointment of guardian voids a contract signed by ward for assignment of insurance proceeds).

As a sidenote, if a suitor had "mercenary intentions" today, the problem could be solved without resort to guardianship, thanks to the Special Needs Trust. In any event, a durable power of attorney requires about the same level of mental capacity as that required for signing a Will. Where an adult with a developmental disability is given only a limited guardian, and has the capacity to sign a durable power of attorney, there is no reason to believe that same individual can't embark in a contract for marriage.

The Americans with Disabilities Act provides as follows:

In a landmark decision, the U.S. Supreme Court recently applied that law to decide that adults with mental disabilities deserve to live in the least restrictive setting. This is true even if the State must spend additional money to make it possible. Olmstead v. L.C., 527 US 581, 119 S. Ct. 2176, 144 L. Ed. 2d 540 (1999). That decision harmonizes with Michigan's Mental Health Code and EPIC, which similarly encourage independence and self-reliance for persons with developmental disabilities and other mental impairments.

When parents serve as Guardians pursuant to the Michigan Mental Health Code, they act as agents of the State of Michigan. They should not be allowed to discriminate against the ward on the basis of disability. They should not deny her access to the least restrictive setting reasonably available to her. Preventing a marriage merely because the guardians do not like the intended spouse violates the Americans with Disabilities Act.

The U.S. Supreme Court has handed down a long line of decisions respecting the sanctity of the marriage relationship, and the limits on a state's interference with marriage and the family. Skinner v. Oklahoma, 316 US 535, 62 S. Ct. 1110, 86 L. Ed. 1655 (1942) is directly on point. The State of Oklahoma passed a statute calling for surgical sterilization of anyone convicted of certain crimes. There was no Due Process hearing to find out whether a particular individual had a genetic propensity to crime, or whether that genetic condition would be passed on to the children.

In the Skinner decision, the U.S. Supreme Court expressed outrage over the Oklahoma statute, in that it deprived citizens of their reproductive freedom based on an arbitrary classification. The state had no evidence that people who commit one type of crime are any more likely to have defective children than people who commit other crimes. Oklahoma was simply taking away the individual's right to bear children, and no facts were going to get in the way of that outcome. Now we are faced with a Michigan statute which is comparable, in that it interferes with a citizen's right to reproductive freedom (through marriage) simply because that individual is a member of a class of persons "adjudged" to have mental impairments.

Another important case on the Constitutional protections afforded marriage, is Griswold v. Connecticut, 381 US 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). In that case, a state law prohibiting doctors from providing contraceptives was struck down as unconstitutional. Such a law interferes with the right to marry, which is constitutionally protected, the high court decided.

Another important U.S. Supreme Court decision related to privacy and marriage is Loving v. Virginia, 388 US 1, 87 S.Ct. 1817, 18 L. Ed. 2d 1010 (1967). In that case, a law against inter-racial marriages was declared to violate the Constitutional right to marry, under both Equal Protection and Due Process.

It is ironic that the statute prohibiting marriage for persons with disabilities in Michigan, MCL 551.6, started out as a law against inter-racial marriages, probably identical to the Virginia law struck down in Loving. MCL 551.6, hereafter called the Idiot Law, arose from the corrupt idea that marriages could be blocked on whatever arbitrary idea came to mind, such as the racial classifications. If the Michigan legislature wished to address sexually transmitted diseases, it believed it could outlaw marriage for persons with syphilis or gonorrhea, even if the woman was pregnant. Op. Atty. Gen. 1943-44, No. O-216, p. 301. If the legislature wished to address epileptics, it simply outlawed marriage for them, as it did between 1905. In 1962, epileptics were taken off the list.

There is no rhyme or reason to this, and clearly the Idiot Law does not pass Constitutional muster.

One of the most unpopular cases among advocates for people with disabilities, is without a doubt Buck v. Bell, 274 US 200, 47 S.Ct. 584, 71 L.Ed. 1000 (1927). The patronizing, mean-spirited comment of Justice Oliver Wendel Holmes lives on in infamy: "Three generations of imbeciles are enough." Buck, 274 US at 207, 47 S. Ct. at 585.

The cases focuses on Carrie Buck, an "inmate" at the State Colony for Epileptics and Feeble Minded for the State of Virginia. Ms. Buck was scheduled for surgical sterilization because she had just delivered a baby, despite a family history of mental disability. The U.S. Supreme Court affirmed the right of a state institution to perform a sterilization on Carrie Buck. However, it should be noted that Carrie Buck was entitled to an individual hearing to determine whether any scientific evidence existed tending to show that her children would be disabled. The institution was not asking the Supreme Court to bless a wholesale sterilization program of everyone in the institution. Rather, the law required the institution to select only those who seemed to have a scientifically verifiable genetic predisposition for having seriously disabled children.

The important point is that Carrie Buck was given a hearing to determine her individual circumstances and what medical evidence was available to predict the condition of her future children. This was not a situation where being institutionalized was proof enough that the person ought to be sterilized.

Michigan's "Idiot Law" prohibits marriage for anyone who has ever been institutionalized, no matter how long ago, so that it strikes much deeper at the fabric of Due Process than Buck. According to MCL 551.6, if a five-year-old enters a residential treatment facility for a week on account of head trauma, and then wishes to get married 20 years later, he or she would be precluded because of the history of having been in an "institution" for "insanity." The Michigan statute makes no accommodation for the passage of time after leaving the "institution." Under MCL 551.6, there is no Due Process hearing, as in Buck, to examine the individual circumstances and determine whether the person will have "insane" children. Instead, a person is prohibited from marrying unless two doctors can certify that the person is "cured" and that there is "no probability" that the disability can be transmitted. This standard places as impermissible burden on the person with a disability, in effect depriving people of the right to marriage in violation of their Constitutional rights.

When a guardian is given authority to limit or stop the individual's legal right to marry or otherwise have sexual relations, the result is a restriction on the person's life much more severe than sterilization. For sure, a person deprived of sexual relationships cannot have children. But limitations on marriage and other "adult" relationships is even worse than sterilization, because the individual is deprived of a meaningful social institution -- the family -- and cannot form a family of his or her own.

Plenty of "normal" people get into relationships, including marriages, which turn out badly. The divorce courts are kept busy, and not just for persons with a history of being in an institution for the "feeble-minded." Bad marriages can happen even to the smartest people. Conversely, good marriages can happen to people who are less than average on the I.Q. scale.

If someone with a developmental disability wants to get married, there could be an inquiry to determine whether the proposed spouse will threaten the individual's health or safety. If one or both of the parents don't like the boyfriend, that is no reason for the State of Michigan to weigh in and prevent a marriage. Parents do not arrange marriages in Michigan, or otherwise dictate whom their sons and daughters may marry. Nor should the parents be able to say that an adult son or daughter may never marry.

If an institution cannot sterilize everyone just because they reside at the institution, as seen in Buck, all the more so a guardian may not interfere with the person's ability to have sexual relationships unless a particular relationship poses a health or safety threat.

Under the Mental Health Code, a guardian's powers are not absolute. For example, the guardian may not place the ward in a facility without special leave of the Probate Court:

Furthermore, the guardian does not have the power to have an individual sterilized, or to demand an abortion from the individual, without express leave of the Probate Court. Such permission would have to depend on sufficient evidence showing a genuine need for the sterilization or other such "extraordinary procedure" based on the facts of the particular case. This is necessary to protect the ward's Due Process right to a fair hearing before being deprived of his or her reproductive freedom or other rights.

The Mental Health Code frowns on involuntary sterilization of adults with developmental disabilities, unless a legitimate reason exists for doing so. Similarly, the Mental Health Code disapproves of placing the person in a "facility" except as a last resort. It makes no sense for the Probate Court to delegate authority to a Guardian to create a restrictive environment in the home, and create the equivalent of sterilization, where the parents have announced in advance their intention to restrict the adult ward's right to choose relationships or choose her own spouse.

In 1846, the Michigan legislature passed a law against inter-racial marriage. The law also prohibited marriage for idiots and insane persons. The following is the original statute as it appeared in 1846 before it "evolved" into MCL 551.6:

In more than 150 years, the above statute has gone through some changes, which are documented in the attached chart. See History of MCL 551.6, "The Idiot Law", attached as Exhibit A.

Today, the statute contains some extra baggage, including a provision that anyone adjudged to be a feeble-minded person, an imbecile, or an idiot, in a court of competent jurisdiction, may not marry until two doctors proclaim the person to be "cured," whatever that means. The materials about negros marrying whites is still there, except that they are allowed to intermarry in Michigan.

The above statute does not apply to a case where the Probate Court has granted only partial or limited guardianship under the Mental Health Code. Such a person is not "adjudged" incompetent for purposes of 551.6 unless the court specifically says so. If the judge does not find the individual "incompetent" to form a marriage contract, then the person automatically retains the right to contract a marriage.

In Michigan, marriage is considered a "contract." Yanoff v. Yanoff, 237 Mich 383, 211 NW 735 (1927), Hess v. Pettigrew, 261 Mich 618, 247 NW 90 (1933). The important point is that the Mental Health Code does not take away the individual's right to contract except as specified by the Probate Court. Therefore, the Probate Judge has the option to leave that right intact; indeed, taking the Mental Health Code as a whole, the Probate Judge has the duty to leave that right intact unless compelling evidence shows a risk to the person's health or safety by being married.

Clearly, the Michigan Legislature intends that the "Idiot Law" not be applied to someone who is the subject of a partial guardianship, since that procedure does not constitute a finding of legal incompetence or incapacity. This Court has the power to make no ruling whatsoever on the issue of marriage, thus keeping that issue outside the scope of powers granted to the Guardian. If the Guardian has only limited powers, the "Idiot Law" does not apply. The Probate Court can protect the individual's freedom and independence by issuing an order making this clear.

May v. Leneair, 99 Mich App 209, 297 NW2d 882 (1980) stands for the proposition that a woman who is adjudged mentally incompetent may not marry a man who is of "sound mind." That case does not apply to someone who is subjected to only a limited guardianship rather than full or plenary guardianship.

Even if May v. Leneair applied, it would result in an impermissible discrimination by limiting a ward to marriage partners who are "not of sound mind." This perverse discrimination between persons with and without disabilities clearly violates the ADA, the US Constitution, and shocks the conscience. The "Idiot Law," MCL 551.6, would allow a woman under guardianship to marry a mental incompetent, but forbid her from marrying someone without a mental disability. That result certainly does not promote her "welfare" as required by the Mental Health Code.

Another important point found in May v. Leneair is its result. The defendants, being the ward and her putative husband, filed a Motion for Summary Disposition on the grounds that the Complaint filed by her Guardian failed to state a cause of action. The Court of Appeals decided that such a motion could not be granted, and remanded the case to the court below for trial on the merits. The main question at trial should have been whether Ms. Leneair had the requisite mental capacity to form the intent to marry and indicate her choice of husband. If so, she did not lack mental capacity and should have been permitted to marry, absent evidence of health or safety risks attendant upon such a choice.

MCL 551.6 is worse than just archaic. It arbitrarily deprives citizens of their Constitutional rights in violation of the Due Process and equal protection, as delineated in the 14th Amendment. Someone with a history of heart disease going back many generations is permitted to marry. There is no need for such a person to obtain a certificate from two doctors promising that the person is "cured" and that there could never be any children born of the marriage with a similar heart disease. Yet those with mental impairments, and no family history of mental disability, are arbitrarily deprived of the right to marry.

The Idiot Law started out as a prohibition against inter-racial marriages. Since then, it has added persons with syphilis, feeble-minded persons, and epileptics to the list of those to be deprived of their Constitutional rights to privacy, to a family, and to reproductive freedom. As seen in the chart attached to this brief, epileptics were taken off the hit list in 1962. This law was wrong when it prevented inter-racial marriages, and it is wrong today by impermissibly interfering with marriages of persons with disabilities.

The interpretation of MCL 551.6 found in May v. Leneair simply proves the fact that the Idiot Law is unconstitutional. According to May, the Michigan legislature intended to treat "feeble-minded" people just as severely as "idiots." That is, folks with mild impairments were deprived of their rights the same as those who suffer more serious disabilities. Rather than pointing out the arbitrary nature of such a scheme, and how it violates the Equal Protection clause of the 14th Amendment, the May court wrongly concluded that the legislature was prohibiting marriage for anyone adjudged mentally incompetent, no matter what the circumstances.

In determining whether the parents, as guardians, should have the right to block a marriage desired by the ward, the Probate Court must consider the standard set forth in MCL 330.1602. Is the guardian seeking to stop the marriage in order to promote the "well being" of the ward? Or just to control her morals? A guardian must not impose his or her moral judgment on the ward in such a way as to deprive that individual of his or her Constitutional rights to reproductive freedom and marriage just because the guardian personally feels uncomfortable with a decision made by the ward. The ward's choice of spouse must pose a threat to the ward's "well being" before it may be prevented by the Probate Court, otherwise the Court is simply making itself a party to an overly-restrictive family member.

A ward and the ward's spouse (or intended spouse) both have standing to challenge the Constitutionality of state laws which interfere with their right to marry and their right to privacy. This is true even if a criminal statute targets one of them on not the other on account of their desire to marry, since it would affect the rights of both. Poe v. Ullman, 367 U.S. 497, 542- 545, 81 S.Ct. 1752, 1776-78, 6 L.Ed.2d 989 (1961) (Harlan, J., dissenting); Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953); Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925); and Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923).

The probate court should not perpetuate a system which treats people with disabilities the same way African-American's were treated in the 1840's, when the predecessor of MCL 551.6 prohibited a white from marrying "negro." That statute was originally designed to keep the races apart. The current version is just as bad, in that it keeps people with disabilities apart from the non-disabled and prevents their "intermarriage." In light of the Michigan Mental Health Code, there is no reason to deprive someone of Constitutional rights on account of the person's disability.

An adult with a developmental disability is first and foremost an adult, and ought to be treated as such by the Probate Court. Parents and others who seek guardianship must keep one thing in mind: the object is to promote independence and freedom, not to force an adult into an artificially dependent and child-like position with respect to his or her parents.

Respectfully submitted,
Martha A. Churchill (P-30535)
Attorney for Martha A. Churchill and Richard L. Davis
73 W. Lewis Ave.
Milan, MI 48160
(734) 439-4055

Dated: December 13, 2000