By Steve Neavling and Joseph Lichterman
DETROIT (Reuters) - A federal judge in Detroit said on Wednesday that a lawsuit brought by a lesbian couple seeking to marry will go to trial in February, disappointing gay activists who had gathered outside the court in the hope Michigan's ban on same sex nuptials might be immediately overturned.
U.S. District Judge Bernard Friedman had been expected to rule as early as Wednesday during a hearing on the case, brought by April DeBoer and Jayne Rowse, a lesbian couple from suburban Detroit who want to jointly adopt each other's children.
Dozens of gay marriage supporters rallied outside the federal courthouse before the hearing, waving rainbow flags and holding signs advocating equality. One opponent stood across the street with a sign that declared homosexuality a sin.
Some county clerks in Michigan said they received numerous calls before the hearing asking whether they would perform same sex marriages if the judge ruled.
The questions prompted Michigan's Republican attorney general, Bill Schuette, to take the unusual step of sending a letter to clerks before the court hearing, telling them they could not perform gay marriages until the case was settled on appeal.
A few county clerks in some other states that bar same sex marriage, such as Pennsylvania, have issued marriage licenses in defiance of state bans.
Judge Friedman, who admitted as he arrived in court that he had never been so nervous about a case, said he would not rule on Wednesday and that the case would go to trial beginning on February 25.
"I'm in the middle," Friedman said. "I have to decide this as a matter of law and I intend to do so."
Gay couples in several states have brought legal challenges since the U.S. Supreme Court in June threw out a key part of the Defense of Marriage Act, which denied same-sex couples federal benefits available to heterosexual couples.
Thirteen states and the District of Columbia allow same-sex nuptials. Michigan is one of 35 states that ban same-sex marriage by statute, through constitutional amendments defining marriage as a union between one man and one woman, or both.
The lesbian women who brought the case each have adopted children - DeBoer a girl and Rowse two boys - and the couple has lived together for more than six years. But the state considers them single people living together and will not allow them to adopt each other's children jointly.
A married heterosexual couple would be allowed to jointly adopt each other's children under state law. DeBoer and Rowse have said they would marry if the Michigan ban were lifted.
They first challenged Michigan's adoption law in 2012 in federal court in Detroit and later expanded their lawsuit to contest Michigan's constitutional amendment that defines marriage as being between a man and a woman.
"There are no second-class citizens in this country," Carole Stanyar, an attorney for the couple, said in court Wednesday. "This amendment enshrined discrimination in the state constitution."
Assistant Michigan Attorney General Kristin Heyse countered that there is "no fundamental right to same-sex marriage."
In opposing the challenge, the state said in court papers that the people of Michigan should be allowed to decide how they define marriage and who should be allowed to adopt.
After Wednesday's hearing, Dana Nessel, another attorney for the couple, said that they had hoped for a "victory lap" Wednesday but will be prepared in February to bring witnesses before the judge.
"If that's what he needs, if he needs to hear it with his own ears, and he needs to be there listening to the testimony and assessing the credibility of the witnesses, then that's what he's going to get," said Nessel.
Oakland County Clerk Lisa Brown, who is named as a defendant in the case but opposes the same-sex marriage ban, said she had received many emails and phone calls asking if the county could issue same sex marriage licenses. The decision to let the case go to trial was a missed opportunity, she said.
"I know there's a lot of disappointed people out there whose rights are being violated," Brown said.
The lesbian couple live in Oakland County.
The case is April DeBoer, et al v. Richard Snyder, et al, U.S. District Court, Eastern District of Michigan, No. 12-10285.
(Reporting By Steve Neavling and Joseph Lichterman; Writing by Mary Wisniewski; Editing by Greg McCune, Andrew Hay and Steve Orlofsky)
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