
    Anita L. SHEARDOWN, Plaintiff-Appellant, v. Janine GUASTELLA, Defendant-Appellee.
    No. 338089
    Court of Appeals of Michigan.
    Submitted November 7, 2017, at Detroit. Decided May 15, 2018, at 9:00 a.m.
    John R. Foley, PC (by Patrick A. Foley ) for plaintiff.
    Judith A. Curtis for defendant.
    Before: Murray, C.J., and Fort Hood and Gleicher, JJ.
   Murray, C.J.

In this child custody action brought pursuant to the Child Custody Act, MCL 722.21 et seq ., plaintiff appeals as of right from an order granting summary disposition in favor of defendant. The trial court dismissed plaintiff's case on the basis that she lacked standing to seek custody. But, after a remand from this Court, the trial court held that the definition of "parent" contained within MCL 722.22(i) was unconstitutional as applied to plaintiff. Nonetheless, the court concluded that its ruling would not be applied retroactively, so the court maintained its ruling that plaintiff could not pursue this custody action. We hold that MCL 722.22(i) is not unconstitutional as applied to plaintiff, and we affirm the trial court's dismissal of her complaint.

I. MATERIAL FACTS AND PROCEEDINGS

This case arises from plaintiff and defendant's former romantic relationship. During their relationship, defendant entered into a contract (the agreement) with plaintiff and a sperm donor, who agreed to assist defendant with becoming pregnant. In the agreement, the donor promised that he would not "try to become a legal parent of any child born from [the] inseminations, or ask for custody or visitation rights at any time." The agreement also contained a statement that plaintiff and defendant "intend[ed] to be legal parents of any child born as a result of [the] inseminations" and that "they will file a petition for [plaintiff] to adopt the child as soon as possible after its birth." Ultimately, defendant's child, MEG, was born as a result of this agreement.

Plaintiff and defendant's romantic relationship continued for some time after MEG's birth. However, plaintiff and defendant never married, nor did plaintiff seek to adopt MEG. Ultimately, plaintiff and defendant's relationship ended no later than February 2014. In 2016 plaintiff filed a complaint in the trial court to initiate a child custody dispute concerning MEG, wherein plaintiff requested custody of, and parenting time with, MEG on the grounds that it was in MEG's best interests as she had acted as his parent for a number of years. Defendant filed an answer to plaintiff's complaint and subsequently moved for summary disposition. The trial court ultimately granted defendant's motion on the basis, as noted earlier, that plaintiff lacked standing to pursue the action.

On appeal, plaintiff argued that she should be considered a parent under the agreement and, therefore, had standing to maintain the custody action. In that regard, she argued that the fundamental right to parent recognized in Troxel v. Granville , 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), was violated by the court's refusal to allow her to seek custody of MEG.

After oral argument before this Court, a majority entered an order remanding this case "for consideration of whether MCL 722.22(i) is constitutional as applied to the facts of this case, in light of Obergefell v. Hodges , [576] U.S. ----, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015), and Pavan v. Smith , [582] U.S. ----, 137 S.Ct. 2075, 198 L.Ed.2d 636 (2017)." Sheardown v. Guastella , unpublished order of the Court of Appeals, entered November 14, 2017 (Docket No. 338089).

As it was required to do, on remand, the trial court issued an opinion and order addressing what the majority asked of it, whether MCL 722.22(i) is constitutional as applied to the facts of this case, in light of Obergefell and Pavan . The trial court held that it was unconstitutional, but that this determination did not affect the ultimate disposition because the court could not go back in time and determine whether the parties would have married had it not been for the state law precluding them from doing so.

II. THE CONSTITUTIONALITY OF MCL 722.22(i) AS APPLIED TO PLAINTIFF

Generally, this Court reviews de novo questions of constitutional law. Detroit Mayor v. Arms Technology, Inc. , 258 Mich. App. 48, 57, 669 N.W.2d 845 (2003), citing People v. LeBlanc , 465 Mich. 575, 579, 640 N.W.2d 246 (2002). We embrace the presumption that statutes are constitutional, and the party challenging the constitutional validity of a statute bears a heavy burden. Phillips v. Mirac, Inc. , 470 Mich. 415, 422-423, 685 N.W.2d 174 (2004).

This as-applied challenge to the constitutional validity of MCL 722.22(i) must be considered in light of the facts and circumstances existing at the time of the complaint's filing. See generally Miller v. Allstate Ins. Co. , 481 Mich. 601, 606, 751 N.W.2d 463 (2008), and Friends of the Earth, Inc. v. Laidlaw Environmental Servs. (TOC), Inc. , 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). Plaintiff's complaint was filed on October 7, 2016, more than a year after the Obergefell Court struck down Michigan's constitutional and statutory prohibitions on same-sex marriage. Thus, when considering the constitutionality of MCL 722.22(i) as applied to these parties, it must be recognized that at the time the case was filed, (1) Michigan was required to recognize same-sex marriages, (2) our Court had already held that the definition of "parent" under MCL 722.22(i) did not run afoul of Obergefell because "that definition applies equally to same-sex and opposite-sex married couples," (3) the parties never availed themselves of the marriage laws of other states that recognized same-sex marriages, and (4) the parties' relationship had, at a minimum, ended some two-and-a-half years before, and approximately a year and a half prior to the issuance of Obergefell .

In light of these undisputed factual and legal propositions, and when applying the governing law under the Equal Protection and Due Process Clauses of the federal Constitution, it is apparent that there is no constitutional infirmity to MCL 722.22(i). In Barrow v. Detroit Election Comm. , 301 Mich. App. 404, 419-420, 836 N.W.2d 498 (2013), our Court set forth the standards governing the equal-protection inquiry:

In undertaking constitutional analysis, we are mindful-as was the circuit court-that legislation challenged on equal protection grounds is presumed constitutional and the challenger has the burden to rebut that presumption. Boulton v. Fenton Twp. , 272 Mich. App. 456, 467, 726 N.W.2d 733 (2006). Courts examine three factors when determining whether a law violates the Equal Protection Clause: "the character of the classification in question; the individual interests affected by the classification; and the governmental interests asserted in support of the classification." Dunn v. Blumstein , 405 U.S. 330, 335, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972).
When evaluating an equal protection challenge to a provision, courts apply one of three traditional levels of review. Heidelberg Bldg., L.L.C. v. Dep't of Treasury , 270 Mich. App. 12, 18, 714 N.W.2d 664 (2006). Traditionally, the rational basis test applies where no suspect factors are present or where no fundamental right is implicated. Kyser v. Kasson Twp. , 486 Mich. 514, 522 n 2, 786 N.W.2d 543 (2010). Under this test, a statute is constitutional if it furthers a legitimate governmental interest and if the challenged statute is rationally related to achieving that interest. Boulton , 272 Mich. App. at 467, 726 N.W.2d 733. Thus, restrictions are set aside only if they are based on reasons unrelated to the state's goals and no grounds can be conceived to justify them.
The most heightened review, strict scrutiny, applies when the provision interferes with a fundamental right or classifies based on factors that are suspect, such as race, national origin, or ethnicity. Rose v. Stokely , 258 Mich. App. 283, 300, 673 N.W.2d 413 (2003). Under a strict scrutiny analysis, the government may not infringe upon a fundamental liberty interest unless the infringement is narrowly tailored to serve a compelling state interest. In re B & J , 279 Mich. App. 12, 22, 756 N.W.2d 234 (2008).

There are two reasons why plaintiff cannot establish a violation of the Equal Protection and Due Process Clauses of the federal Constitution. First, Obergefell and its limited progeny do not have any impact on plaintiff as she was never married, and she is not asking the courts to create a marriage post hoc. Second, under an equal-protection analysis, plaintiff is simply not subject to dissimilar treatment under the statute compared to a heterosexual unmarried individual.

A. OBERGEFELL'S PRINCIPLES DO NOT APPLY

As noted above, the parties were never married and the plaintiff has disavowed any interest (as has the dissent) in going back in time in an attempt to determine whether the parties would have been married had they had the legal option to do so prior to Obergefell . This is important because Obergefell addressed only the fundamental right to marry protected by the liberty interest of the Due Process Clause, and the many state laws that did not recognize that right relative to same-sex couples. And, as Pavan , 582 U.S. at ----, 137 S.Ct. at 2078, recognized, the overarching principle from Obergefell requires states to afford the same marriage -related benefits to same-sex married couples that are afforded to heterosexual married couples. See also McLaughlin v. Jones , 243 Ariz. 29, 34, 401 P.3d 492 (2017) (reasoning that "the benefits attendant to marriage were expressly part of the [ Obergefell ] Court's rationale for concluding that the Constitution does not permit states to bar same-sex couples from marriage 'on the same terms' "), quoting Obergefell , 579 U.S. at ----, 135 S.Ct. at 2607 (emphasis added); In re Carter Estate , 159 A.3d 970, 977 2017 PA Super 104 (2017) (holding that Obergefell was limited to recognizing the constitutional right of same-sex couples to marry under state law and not to be subsequently denied the same state law privileges afforded opposite-sex married couples). In other words, Obergefell requires states to recognize a legal marriage between individuals of the same sex and, as Pavan held, once the state recognizes these marriages it cannot deny government benefits that are offered to heterosexual married couples. And that is why our Court, with respect to this very statute, concluded that MCL 722.22(i) applies equally to same-sex and heterosexual married couples. Stankevich v. Milliron (On Remand) , 313 Mich. App. 233, 238 n. 2, 882 N.W.2d 194 (2015).

But the parties were never married. They had the option to marry in several different states while they were in a relationship, but for whatever reason (and they offer conflicting ones), they did not. Nor did plaintiff ever seek to adopt MEG, even though that legal right existed after Obergefell was decided, see Mabry v. Mabry , 499 Mich. 997, 998-999, 882 N.W.2d 539 (2016) ( MCCORMACK , J., dissenting), most likely because the parties' relationship had ended years earlier. Consequently, plaintiff is not in a position to argue that she was denied a benefit granted to a heterosexual married person, because she was never married to defendant.

As a result, the liberty interest in the right to marry that was extended to same-sex couples in Obergefell simply does not come into play.

B. WITHOUT DISSIMILAR TREATMENT, NO EQUAL-PROTECTION VIOLATION EXISTS

As noted, the Equal Protection Clause generally prohibits the government from treating similarly situated persons differently without a valid reason to do so. See In re Parole of Hill , 298 Mich. App. 404, 420-422, 827 N.W.2d 407 (2012) (recognizing the compelling-state-interest and rational-basis tests). If possible, we must construe a statute in a constitutional manner. See In re Rood , 483 Mich. 73, 121, 763 N.W.2d 587 (2009) (opinion by CORRIGAN , J.); People v. Wilson , 230 Mich. App. 590, 593-594, 585 N.W.2d 24 (1998). What is dispositive of this constitutional argument is that a male in an opposite-sex relationship could also meet the same fate as plaintiff, and thus receive the same treatment as plaintiff under the statute. For example, suppose the female in an opposite-sex relationship becomes pregnant with a third party's child, but once born, the male in the relationship treats the child as his own. Once the relationship ends, the male would be in the same position as plaintiff relative to the statutory definition of "parent," i.e., he would have no biological or legal link to the child born during the relationship. Because the foregoing shows that the statute can be applied equally to someone in plaintiff's position, but not in a same-sex relationship, MCL 722.22(i) is constitutional.

The Virginia Court of Appeals came to the same conclusion regarding its common-law definition of "parentage," which is the same as our statutory definition of "parent." In Hawkins v. Grese , 68 Va. App. 462, 475, 809 S.E.2d 441 (2018), the court held that there was no dissimilar treatment under that state's biological/legal definition of "parentage," since it applied equally to all:

Further, this definition of parentage does not discriminate between same-sex and opposite-sex couples. If the couple is not married, the non-biological/non-adoptive partner is not a parent irrespective of gender or sexual orientation. It is true that when Hawkins and Grese began their relationship, the law of the Commonwealth barred Hawkins and Grese from marrying, but the record does not indicate this was the sole reason they remained unmarried. While those laws previously banning same-sex marriage were discriminatory, the Commonwealth's definition of parent is not as it applies equally regardless of an unmarried couple's gender or sexual orientation.

Because MCL 722.22(i) can apply equally to same-sex and opposite-sex unmarried couples, there is no equal-protection violation.

We also conclude that even if dissimilar treatment did occur to plaintiff, it was not unconstitutional treatment under either the Equal Protection Clause or the Due Process Clause. Nothing within MCL 722.22(i) distinguishes between same-sex and opposite-sex married couples, a proposition we recognized in Stankevich , 313 Mich. App. at 238 n. 2, 882 N.W.2d 194. Instead, MCL 722.22(i) distinguishes only between those who have a biological or legal link to the child and those who do not. Such a distinction, particularly when applied to plaintiff, a unmarried person, does not run afoul of the constitutional principles declared in Obergefell . Nor does it suggest unlawful unequal treatment. Again, the Hawkins court used the same rationale in upholding Virginia's definition of parentage:

In sum, the entire basis of the holding of Obergefell is the significance and importance of marriage as an institution that should not be withheld from same-sex couples. Barring procreation or adoption, pre- Obergefell , different-sex marriages did not automatically result in the spouses becoming legal parents of each other's children and the analysis of the Obergefell majority opinion does not compel a different conclusion with respect to same-sex marriages, far less unmarried couples of any sexual orientation. [ Hawkins , 68 Va. App. at 476-477, 809 S.E.2d 441.]

We agree with this proposition, which satisfies the deferential rational-basis review applicable to this challenge. Lake v. Putnam , 316 Mich. App. 247, 254-256, 894 N.W.2d 62 (2016).

There are several significant differences between our opinion and that of the dissent. First off, the dissent fails to recognize that Obergefell did not grant same-sex couples anything more than the right to have states recognize their marriage (not an insignificant right, no doubt) and to treat those marriages the same as ones between heterosexuals. As we have explained, Pavan made this point clear when it held that the Arkansas Supreme Court's decision "denied married same-sex couples access to the 'constellation of benefits that the Stat[e] ha[s] linked to marriage.' " Pavan , 582 U.S. at ----, 137 S.Ct. at 2078, quoting Obergefell , 576 U.S. at ----, 135 S.Ct. at 2601 (alterations in original). Plaintiff can simply reap no benefit from either Obergefell or Pavan because she was never married, nor was she ever engaged to be married.

And that brings us to our second point. Our reference to plaintiff's not having married-either before or after Obergefell -was not to "fault" her, or to raise any socioeconomic issues. Indeed, we know nothing of the parties' economic situations. Rather, our point was that in each case decided post- Obergefell , including Pavan , Stankevich , McLaughlin , and In re Carter Estate , the parties had been married (either in their state or another) and were seeking to obtain a benefit of marriage that was granted to heterosexual married couples. But when a party who comes before the court is not a part of a marital relationship, as in this case and Hawkins , he or she is not entitled to the "constellation of benefits" referred to in Obergefell . Thus, plaintiff's marital status is highly relevant to the legal issues presented, and not to any other social or economic matter.

Additionally, we are unclear how MCL 722.22(i) makes a classification based on sexual orientation. Nothing in the words of the statute does, and our Court has already stated that this statute applies equally to same-sex and opposite-sex marriages. Stankevich , 313 Mich. App. at 238 n. 2, 882 N.W.2d 194. Nor can we allow any perceived inequities for a particular party to control our duty to objectively apply the law. Progressive Mich. Ins. Co. v. Smith , 490 Mich. 977, 978-979, 806 N.W.2d 494 ( YOUNG , C.J., concurring).

For these reasons, we reverse the trial court's holding that MCL 722.22(i) is unconstitutional as applied to plaintiff, but affirm the trial court's ultimate order dismissing plaintiff's complaint for custody.

Affirmed. No costs, a question of public importance being involved. MCR 7.219(A).

Gleicher, J., concurred with Murray, C.J.

Dissenting Opinion by Fort Hood, J.

I respectfully dissent. At the heart of this case lies the well-being of a minor child who, without reason or justification aside from the fact that his parents were in a same-sex relationship and were not legally permitted to marry, has been denied the opportunity to continue a relationship with one of his parents, as well as his biological sibling. The foundation of the majority's conclusion permitting this action, that MCL 722.22(i) is constitutional on equal-protection and due-process grounds as applied to plaintiff, is grounded in its correct recognition that plaintiff and defendant were not legally married. However, the pivotal and very unfortunate fact not in dispute in this case is that plaintiff and defendant were legally forbidden by the state of Michigan from entering into a legally recognized marriage (1) before MEG was born, (2) on the date of his birth, July 26, 2011, and (3) in the time thereafter, before the breakdown of their romantic relationship. It was not until June 26, 2015, when the United States Supreme Court recognized that no person should be denied the fundamental right to marry, that members of same-sex relationships were afforded the basic human right to join in marriage, and all its attendant benefits, rights that all other Americans enjoyed before this date. As a result of the injustice that existed before Obergefell v. Hodges , 576 U.S. ----, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015), and which the Obergefell Court sought to remedy, plaintiff was legally foreclosed from taking the necessary steps to protect her relationship with MEG. The one who bears the bitter consequence of his parents' legal inability to marry is young MEG, and the end result of this case in this Court is that plaintiff will play no part in MEG's life and MEG will have no further relationship with his biological sibling. I cannot countenance such a result, particularly in light of the controlling United States Supreme Court precedent recognizing the right of same-sex couples to marry and to avail themselves of the concomitant benefits, and for the reasons set forth below, I would reverse and remand for further proceedings.

I. MCL 722.22(i)

The Child Custody Act (CCA), MCL 722.21 et seq ., governs custody, parenting time, and child support issues for minor children in Michigan. MCL 722.24(1). As this Court has observed, the CCA "is the exclusive means of pursuing child custody rights...." Aichele v. Hodge , 259 Mich. App. 146, 153, 673 N.W.2d 452 (2003) (quotation marks and citation omitted). The Legislature has also directed that the CCA, legislation that is "equitable in nature," should be "liberally construed...." MCL 722.26(1). MCL 722.22(i) defines ''parent'' in the following terms:

"Parent" means the natural or adoptive parent of a child.

If plaintiff is not a biological parent or a legal parent, she is considered a third person under the CCA. Van v. Zahorik , 460 Mich. 320, 328, 597 N.W.2d 15 (1999). The parties do not dispute that plaintiff does not meet the definition of a third person as contemplated by MCL 722.26c. Plaintiff also does not have standing under the CCA as a guardian or limited guardian. See MCL 722.26b. Therefore, this Court must decide whether, under the circumstances of this case, the definition of ''parent'' in MCL 722.22(i) violates plaintiff's equal-protection and substantive-due-process-rights because it excludes from its ambit plaintiff, a member of a same-sex partnership that bore a child, who was legally prohibited from marrying her same-sex partner and adopting MEG before the United States Supreme Court's landmark decision in Obergefell. I answer this question in the affirmative and would hold that MCL 722.22(i) is unconstitutional as applied to plaintiff.

II. UNITED STATES SUPREME COURT PRECEDENT

In Obergefell , the petitioners argued that the respondent state officials violated the Fourteenth Amendment by enforcing laws denying them the right to marry in their home state, or to have marriages validly performed in another state recognized in their home state. Obergefell , 576 U.S. at ----, 135 S.Ct. at 2593. The Obergefell Court ultimately held, in pertinent part, as follows:

[T]he right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. Baker v. Nelson, [409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972) ] must be and now is overruled, and the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples. [ Obergefell , 576 U.S. at ----, 135 S.Ct. at 2604-2605.]

Importantly, and as relevant to this case, in Obergefell the Court recognized a "constellation of benefits ... linked to marriage" that same-sex couples were historically and unconstitutionally deprived of as a result of being denied the right to marry. Id . at ----, 135 S.Ct. at 2601. These included, according to the Obergefell Court, the following:

taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decisionmaking authority; adoption rights ; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers' compensation benefits; health insurance; and child custody, support, and visitation rules . [ Id . at ----, 135 S.Ct. at 2601 (emphasis added).]

Following Obergefell , the United States Supreme Court decided Pavan v. Smith , 582 U.S. ----, 137 S.Ct. 2075, 198 L.Ed.2d 636 (2017), in which two married same-sex couples in Arkansas, having conceived their children through anonymous sperm donation, challenged an Arkansas state statute setting forth who could appear as parents on a child's state-issued birth certificate. The state law "generally require[d] the name of the mother's male spouse to appear on the child's birth certificate-regardless of his biological relationship to the child," and the Arkansas Supreme Court concluded that this rule would not extend to same-sex couples. Id . at ----, 137 S.Ct. at 2077. The United States Supreme Court held that such ''differential treatment infringes Obergefellt's commitment to provide same-sex couples 'the constellation of benefits that the States have linked to marriage' " and reversed the judgment of the Arkansas Supreme Court. Id . at ----, 137 S.Ct. at 2077, quoting Obergefell , 576 U.S. at ----, 135 S.Ct. at 2601.

The Arkansas Supreme Court's decision, we conclude, denied married same-sex couples access to the "constellation of benefits that the Stat[e] ha[s] linked to marriage." Obergefell , [576 U.S. at ----, 135 S.Ct. at 2601]. As already explained, when a married woman in Arkansas conceives a child by means of artificial insemination, the State will-indeed, must-list the name of her male spouse on the child's birth certificate. See [Ark. Code Ann.] § 20-18-401(f)(1) ; see also § 9-10-201; supra , at 2077. And yet state law, as interpreted by the court below, allows Arkansas officials in those very same circumstances to omit a married woman's female spouse from her child's birth certificate. See [Smith v. Pavan, 2016 Ark. 437, 11-12, 505 S.W.3d 169 (2016) ]. As a result, same-sex parents in Arkansas lack the same right as opposite-sex parents to be listed on a child's birth certificate, a document often used for important transactions like making medical decisions for a child or enrolling a child in school. See [Petition for Certiorari, pp.] 5-7 (listing situations in which a parent might be required to present a child's birth certificate). Obergefell proscribes such disparate treatment. As we explained there, a State may not "exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples." [ Obergefill , 576 U.S. at ----, 135 S. Ct. at 2605 ]. Indeed, in listing those terms and conditions-the "rights, benefits, and responsibilities" to which same-sex couples, no less than opposite-sex couples, must have access-we expressly identified "birth and death certificates." [ Id . at ----, 135 S.Ct. at 2601 ]. That was no accident: Several of the plaintiffs in Obergefell challenged a State's refusal to recognize their same-sex spouses on their children's birth certificates. See DeBoer v. Snyder , 772 F.3d 388, 398-399 (C.A.6, 2014). In considering those challenges, we held the relevant state laws unconstitutional to the extent they treated same-sex couples differently from opposite-sex couples. See [ Obergefell , 576 U.S. at ----, 135 S.Ct. at 2605 ]. That holding applies with equal force to [Ark. Code Ann.] § 20-18-401. [ Pavan , 582 U.S. at ----, 137 S.Ct. at 2078 (emphasis added).]

III. EQUAL PROTECTION

In determining whether MCL 722.22(i) is unconstitutional as applied to plaintiff on equal-protection and due-process grounds, I start with the foundational principle that a statute will be presumed to be constitutional "unless the unconstitutionality is clearly apparent." DeRose v. DeRose , 469 Mich. 320, 326, 666 N.W.2d 636 (2003).

In Shepherd Montessori Ctr. Milan v. Ann Arbor Charter Twp. , 486 Mich. 311, 318-319, 783 N.W.2d 695 (2010), the Michigan Supreme Court enunciated the applicable legal principles governing an equal protection challenge:

The equal protection clauses of the Michigan and United States constitutions provide that no person shall be denied the equal protection of the law. This Court has held that Michigan's equal protection provision is coextensive with the Equal Protection Clause of the United States Constitution. The Equal Protection Clause requires that all persons similarly situated be treated alike under the law. When reviewing the validity of state legislation or other official action that is challenged as denying equal protection, the threshold inquiry is whether plaintiff was treated differently from a similarly situated entity . The general rule is that legislation that treats similarly situated groups disparately is presumed valid and will be sustained if it passes the rational basis standard of review: that is, the classification drawn by the legislation is rationally related to a legitimate state interest. Under this deferential standard, the burden of showing a statute to be unconstitutional is on the challenging party, not on the party defending the statute[.] [Quotation marks and citations; emphasis added.]

As a preliminary matter, plaintiff, on the basis of her sexual orientation, and as a former member of a same-sex partnership who was not permitted to marry her same-sex partner or adopt MEG following his birth, is receiving disparate treatment from that of an individual who does not share her sexual orientation, because under the CCA she cannot seek custody of and parenting time with MEG. Conversely, a former member of an opposite-sex relationship that produced a child, even after the relationship ended, would be able to proceed under the CCA to seek custody of and parenting time with the child at issue if that individual had a biological link to the child. The majority asserts that plaintiff has not suffered a violation of her right to equal protection under MCL 722.22(i), claiming that a male in an opposite-sex relationship who does not have a biological link with a child his female partner carried "could also meet the same fate as plaintiff[.]" '' 'To be considered similarly situated [for purposes of an equal-protection analysis], the challenger and his comparators must be prima facie identical in all relevant respects or directly comparable ... in all material respects.' " Demski v. Petlick , 309 Mich. App. 404, 464, 873 N.W.2d 596 (2015), quoting Lima Twp. v. Bateson , 302 Mich. App. 483, 503, 838 N.W.2d 898 (2013). In my view, the majority's conclusion that the male in an opposite-sex relationship is similarly situated to plaintiff overlooks the key fact that, unlike the heterosexual male whom the majority compares plaintiff to, plaintiff was in fact legally precluded from marrying her partner. Conversely, the heterosexual male subject of the majority's comparison, if he and his female partner deemed it appropriate, could not only have legally married, but the male individual could have in turn adopted the child. Plaintiff, before Obergefell , enjoyed no such privileges, and therefore the majority's claim that she and the male in an opposite-sex relationship such as given in the majority's example are similarly situated is, in my view, not an appropriate analogy.

Further, even employing the most deferential of standards, the rational-basis standard of review, the classification that MCL 722.22(i) makes on the basis of sexual orientation must be "rationally related to a legitimate state interest." Shepherd Montessori Ctr. Milan , 486 Mich. at 318-319, 783 N.W.2d 695. In general, the CCA serves an important purpose for our state, in that it "standardiz[es] the criteria for resolving child custody disputes by requiring the circuit court to evaluate [several] factors in making its determination of the best interests of a child." Bowie v. Arder , 441 Mich. 23, 52, 490 N.W.2d 568 (1992). Put another way, "[i]t is clear that the act was intended to provide a framework for the resolution of disputes with regard to the custody of a child." Id . (emphasis omitted). Specifically turning to MCL 722.22(i), by limiting the definition of parent, Subdivision (i) presumably intends to ensure that those who seek to adjudicate matters of child custody and parenting time have a legal, valid, and continuing relationship with the minor child at issue. However, I cannot conclude that the means employed, which involves specifically and unjustifiably excluding some individuals from the definition of parent on the basis of their sexual orientation, is rationally related to the state's interest, particularly in light of Obergefell and Pavan , in which the United States Supreme Court has directed that benefits traditionally associated with marriage, such as child custody, parenting time, and adoption, should no longer be unconstitutionally withheld from married same-sex couples. Obergefell , 576 U.S. at ----, 135 S.Ct. at 2604-2605 ; Pavan , 582 U.S. at ----, 137 S.Ct. at 2076-2077. Accordingly, I agree with plaintiff that by limiting the definition of ''parent'' in MCL 722.22(i) to a natural or adoptive parent, the legislation at issue violates plaintiff's right to equal protection under the law given that she was legally prohibited from marrying her same-sex partner.

IV. SUBSTANTIVE DUE PROCESS

In AFT Mich. v. Michigan , 497 Mich. 197, 244, 866 N.W.2d 782 (2015), the Michigan Supreme Court recognized that "[t]he Michigan and United States Constitutions forbid the state from depriving any person of life, liberty, or property without due process of law."

Due process not only provides an individual with procedural protections, but also includes a "substantive" element by which an individual will be protected against "the arbitrary exercise of governmental power." Id . (quotation marks and citation omitted). When a challenged law does not violate a "fundamental right[ ]," to succeed on a substantive-due-process claim, the plaintiff must establish that the law at issue is "not reasonably related to a legitimate governmental interest." Id . (quotation marks and citation omitted). As the Michigan Supreme Court has cautioned, the initial inquiry in determining whether legislation violates an individual's substantive-due-process rights is "whether the interest allegedly infringed by the challenged government action ... comes within the definition of 'life, liberty or property.' " Bonner v. Brighton , 495 Mich. 209, 225, 848 N.W.2d 380 (2014).

In Washington v. Glucksberg , 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997), the United States Supreme Court highlighted some of the individual rights encompassed by the '' 'liberty' specially protected by the Due Process Clause...." According to the Glucksberg Court, these rights include the right to marry, to have children, and "to direct the education and upbringing of one's children...." Id . (citations omitted). Later, in Troxel v. Granville , 530 U.S. 57, 65-66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), the United States Supreme Court canvassed the history of what it characterized as one of ''the oldest ... fundamental liberty interests recognized by [the United States Supreme Court]," the right of parents to the care, custody, and control of their child:

The liberty interest at issue in this case-the interest of parents in the care, custody, and control of their children-is perhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago, in Meyer [v. Nebraska , 262 U.S. 390, 399, 401, 43 S.Ct. 625, 67 L. Ed. 1042 (1923) ], we held that the "liberty" protected by the Due Process Clause includes the right of parents to "establish a home and bring up children" and "to control the education of their own." Two years later, in Pierce [v. Society of Sisters , 268 U.S. 510, 534-535, 45 S.Ct. 571, 69 L. Ed. 1070 (1925) ], we again held that the "liberty of parents and guardians" includes the right "to direct the upbringing and education of children under their control." We explained in Pierce that "[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations." Id ., at 535, 45 S.Ct. 571. We returned to the subject in Prince [v. Massachusetts , 321 U.S. 158, 64 S.Ct. 438, 88 L. Ed. 645 (1944) ], and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." Id ., at 166, 64 S.Ct. 438.

While the cases protecting parent's fundamental liberty interests in the care and management of their own children have traditionally done so when the rights of natural parents are at issue, in Obergefell and Pavan , the United States Supreme Court expressly held that same-sex married couples should not be denied, either on equal-protection or due-process grounds, the right to marry, as well as concomitant benefits, including adoption, custody, and parenting time. Obergefell , 576 U.S. at ----, 135 S.Ct. at 2604-2605 ; Pavan , 582 U.S. at ----, 137 S.Ct. at 2076-2077. While the Michigan Supreme Court has observed that ''there has 'always been reluctan[ce] to expand the concept of substantive due process' " and that '' 'judicial self-restraint must be undertaken when the parties ask that new ground be broken in this field,' " Bonner , 495 Mich. at 227, 848 N.W.2d 380, the ground has already been broken wide open by the United States Supreme Court. Specifically, in Obergefell , the United States Supreme Court discussed ''four principles and traditions ... [that] demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples." Obergefell , 576 U.S. at ----, 135 S.Ct. at 2599. One such basis, the Court opined, ''for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education." Id . at ----, 135 S.Ct. at 2600.

The majority opinion makes much of the fact that plaintiff did not legally marry defendant. This is correct, and therefore, to her detriment, and in a particularly cruel evolution of our nation's law, according to the majority, the protections afforded by Obergefell simply pass plaintiff by. As noted earlier, plaintiff did not legally marry defendant because she was not permitted to do so before Obergefell was decided on June 26, 2015, although the parties agreed in a written contract that plaintiff would seek adoption of MEG, which was also unlawful for plaintiff pre- Obergefell . The majority essentially faults plaintiff for the failure to marry defendant, impliedly questioning why she did not travel to another state to legally marry defendant. I am aware that not all Americans are of financial means, and traveling to another state, while juggling the demands of parenthood and working outside the home, might not have been possible. Additionally, what motivation did plaintiff and defendant have to make such an out-of-state excursion to legally marry in a state that recognized same-sex marriage before Obergefell , when Michigan would have refused to recognize the union? Under these circumstances, consistent with Obergefell and Pavan , I conclude that plaintiff has a fundamental liberty interest in parenting MEG and that the limitation of the definition of ''parent'' in MCL 722.22(i) to a natural or adoptive parent post- Obergefell amounts to an arbitrary exercise of governmental power infringing that right. AFT Mich. , 497 Mich. at 245, 866 N.W.2d 782. Accordingly, I agree with plaintiff that MCL 722.22(i) also violates her right to substantive due process.

V. CONCLUSION

In my opinion, MCL 722.22(i) is unconstitutional in light of the United States Supreme Court's decisions in Obergefell and Pavan because it violates plaintiff's rights to equal-protection under the law and substantive due process. I would reverse the trial court's order granting summary disposition in favor of defendant and remand for further proceedings to allow (1) plaintiff to commence adoption proceedings and (2) the trial court to determine matters related to custody and parenting time as set forth in MCL 722.23, MCL 722.25, MCL 722.27, and MCL 722.27b. 
      
      Plaintiff and defendant, who were a same-sex couple, ended their relationship more than a year prior to the United States Supreme Court's decision in Obergefell v. Hodges , 576 U.S. ----, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015).
     
      
      Presiding Judge Murray dissented from the sua sponte remand, arguing that the constitutional issue ordered to be addressed by the trial court was injected into the case by the Court, not the parties. See Sheardown v. Guastella , unpublished order of the Court of Appeals, entered November 14, 2017 (Docket No. 338089) ( Murray , P.J., dissenting).
     
      
      At oral argument before this Court, plaintiff's counsel conceded that the courts should not attempt to reconstruct whether the parties would have married prior to their breakup in 2012 had they had the right to do so.
     
      
      The trial court erred when it concluded that it lacked subject-matter jurisdiction because "the Child Custody Act does not afford Plaintiff substantive rights to Defendant's child or Defendant substantive rights to Plaintiff's child." The trial court's analysis, while germane to considering whether plaintiff had standing to initiate a child custody dispute under the Child Custody Act, did not address whether the trial court itself lacked the right to exercise jurisdiction over child custody disputes. There is no dispute that a circuit court has the right to exercise jurisdiction over child custody, as the Child Custody Act expressly contemplates that "a child custody dispute" may be "submitted to the circuit court as an original action under this act...." MCL 722.27(1).
     
      
      Stankevich v. Milliron (On Remand) , 313 Mich. App. 233, 238 n. 2, 882 N.W.2d 194 (2015).
     
      
      See U.S. Const, Am XIV.
     
      
      With respect to the dissent's conclusion that unlawful dissimilar treatment exists under the statute, the dissent bases its conclusion on the rationale that plaintiff could not be a "parent" because she has no biological link to the child born to defendant and could not adopt the child when he was born, while a heterosexual individual who has a biological link to the child would be a "parent" under MCL 722.22(i). A true statement, but, as we noted above, that is not the end of the inquiry, as the proper question is whether the statute can be applied constitutionally, and it can.
     
      
      The rational-basis test is applied to an equal-protection challenge based on alleged dissimilar treatment between heterosexual and homosexual persons. See Bostic v. Schaefer , 760 F.3d 352, 397 (C.A. 4, 2014) ( Niemeyer , J., dissenting), and cases cited therein. The Obergefell Court did not specify what standard of review it was using for equal-protection purposes.
     
      
      As explained by this Court in Lake , 316 Mich. App. at 256, 894 N.W.2d 62, the equitable-parent doctrine is inapplicable to all unmarried couples, and thus the doctrine does not run afoul of either the Equal Protection or Due Process Clause. Lake is binding on this Court, MCR 7.215(J)(1), and the Supreme Court has declined to address the issue any further, see Mabry , 499 Mich. 997, 882 N.W.2d 539 (2016) ( McCormack , J., dissenting).
     
      
      During their romantic relationship, defendant entered into a November 13, 2010 agreement (the donor agreement) with plaintiff and a sperm donor (the donor) who agreed to assist defendant with becoming pregnant. The donor agreement contained a statement that plaintiff and defendant "intend[ed] to be legal parents of any child born as a result of [the] inseminations" and that "they will file a petition for [plaintiff] to adopt the child as soon as possible after its birth." During their romantic relationship plaintiff gave birth to MEG's half-sister, also conceived through artificial insemination, who is biologically related to MEG.
     
      
      This Court is bound to follow Obergefell , and as the majority points out, Michigan now recognizes the validity of same-sex marriage. Stankevich v. Milliron (On Remand ), 313 Mich. App. 233, 237, 240, 882 N.W.2d 194 (2015). However, in Stankevich , this Court was not presented with the issue that we are in this case, that being whether a provision of the CCA is unconstitutional as applied to plaintiff on due-process and equal-protection grounds in light of the fact that plaintiff was not able to enter into a legal same-sex marriage before Obergefell .
     
      
      In Romer v. Evans , 517 U.S. 620, 623, 631-632, 635, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996), the United States Supreme Court employed the rational-basis standard of review when considering an equal-protection challenge to an amendment to Colorado's state constitution that "prohibit[ed] all legislative, executive or judicial action at any level of state or local government designed to protect" gays and lesbians, id . at 624, 116 S.Ct. 1620.
     
      
      As the United States Supreme Court stated in Obergefell , the right to " 'marry, establish a home and bring up children' is a central part of the liberty protected by the Due Process Clause." Obergefell , 576 U.S. at ----, 135 S.Ct. at 2600, quoting Zablocki v. Redhail , 434 U.S. 374, 384, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978).
     