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Aug 23 2013

Michigan Marriage Amendment Being Challenged

Dan Ray, a good friend that I met through this blog nearly a decade ago and a professor of constitutional law, has joined with several of his colleagues in filing an amicus brief in a legal challenge to Michigan’s constitutional amendment forbidding same-sex marriage. But the case, Deboer v Snyder, is really about adoption by same-sex couples.

April Deboer and Jayne Rowse have been a couple for a very long time, but cannot get married under Michigan law. They have adopted three children separately, as individuals (two kids for one, one for the other), and now wish to adopt them jointly. Doing so would clearly be in the best interests of the children because it would require that both of them bear the legal responsibilities of parenthood for all three kids. But they can’t do that because the Michigan Marriage Amendment forbids the recognition of same-sex couples for any reason, not just for the purposes of marriage.

The brief was filed by a group of law professors at Cooley Law School and it argues along the lines of the Supreme Court’s recent decision on DOMA that the law forbidding same-sex marriage was motivated by animus and does not have any rational basis related to a governmental interest.

Beneath the surface of the proffered justifications for the amendment, we find a state constitutional provision that irrationally subordinates a relatively powerless minority because of disdain for the characteristic – sexual orientation – that defines it. First, the amendment was motivated by the same kind of discriminatory animus the Supreme Court found in Romer and Windsor. This animus is evident in statements made by the drafters and principal proponents of the MMA. Further, because the MMA was one of more than a dozen anti-same-sex marriage initiatives put up nationwide for a vote during the 2004 elections, the amendment was part of a pattern and practice of discrimination against gays and lesbians designed to assure their continuing legal and political inferiority.

Second, the amendment is a facially overbroad, status-based enactment, one that punishes same-sex couples not for being morally blameworthy but because of who they are. Gays and lesbians are set apart from all others on the basis of a single characteristic – sexual orientation – and their relationships are denied any recognition under Michigan law. The MMA makes same-sex relationships invisible in the eyes of the State and deprives citizens in those relationships of the benefits and protections, as well as the burdens, of Michigan law.

The brief goes on to quote from Gary Glenn, the Catholic Church in Michigan and the Family Research Council, all of whom helped fund and promote the passage of the MMA, quotes that establish the clear animus — that is, bigotry — that motivated them to do so. For instance, Catholic church officials in Michigan argued that the law was necessary to prevent the “legalization of evil” and that same-sex marriage is “gravely immoral.”

The law, in short, was nothing more than an attempt to enforce the religious beliefs of these people and their bigotry toward gay people that flows from those beliefs. That simply cannot be a rational basis for public policy.

10 comments

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  1. 1
    gshelley

    The way things are going we have a really good chance of it being overturned by vote in 2014 or 2016 (I know there was talk of starting a petition, or that one was even underway), but if we can get rid of it before then, all the better. I know some people feel it more “legitimate” if such laws are overturned by the will of the people rather than a court, but examples like this show that it is doing harm right now. I wasn’t in Michigan when the amendment passed, but from what I read after (hear, and possibly elsewhere), the proponents basically lied through their teeth about the effects and the extremely broad language.

  2. 2
    Modusoperandi

    “The law, in short, was nothing more than an attempt to enforce the religious beliefs of these people and their bigotry toward gay people that flows from those beliefs. That simply cannot be a rational basis for public policy.”

    Petty spite is the basis for Law. It’s right there in the Old Testament*
     
    * “And if Steve asks you for money, tell him ‘No’, saith the LORD, ‘Jerk. If Steve needs money from me he shouldn’t let his stupid dog dig up my azalias.’/And it came to pass that Steve had no money, and he starved and also he died. Screw Steve.’”

  3. 3
    Synfandel

    re: Modusoperandi @#2

    Needs a citation:
    2 Malicious, 13:1-3

  4. 4
    Modusoperandi

    Synfandel, Jesus also refers to it in The Parable of the Steve Studerman (2118 Jaffa Gate, Jerusalem) the Stupid Neighbor*.
     
    * “Once there was a jerk and he was dumb and didn’t take good care of his lawn and also he blocked the sidewalk when he parked in his driveway sometimes and that’s just rude. And then he died.”

  5. 5
    brianwestley

    It also gets support from the SC DOMA opinion in that not recognizing adoption by both parents results in real harm to the children.

  6. 6
    Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden

    I said for a long, long time that we need to drop the comparisons to race and go after the heart of this thing using religion. Too many for too long have made it seem as if the etiology of sexual orientation is at all relevant.

    But people have been quite clear that they’ve been legislating in this area because teh gay is “against god” or some such. But if the state can’t compel people to stop chanting mantras because Buddhism & Hinduism make the baby jesus cry, the state can’t compel people not to have ghey secks because it makes the baby jesus cry. It doesn’t matter one whit if sexual orientation is inborn: being Buddhist or Hindu or animist isn’t inborn.

    Of course, that would have run the risk (which I acknowledged in the 90s) that with animus so pervasive and the justifications so nakedly based on religion, that the court would have bent over backwards to find the plain statements of motivation of drafters and proponents (and sponsors, when laws move through the legislature) to be “ceremonial fag-hating” and thus constitutionally irrelevant.

    If we had a track record of cases citing ceremonial fag-hating, it would have created a barrier in precedent to striking down nakedly unconstitutional law later. But in my opinion, we needed to get away from irrelevancies and unprovables and put the focus on what actually makes these laws so constitutionally suspect.

    This trend seemed to start 15 years late when we got the first federal statement on civil rights laws protecting trans people. This was Schroer v. Billington in 2008. Schroer’s employer hirer-who-never-allowed-her-to-begin-work claimed that discrimination based on sex was impossible since the employer discriminated against neither men as a class nor women as a class*, that this discrimination was only inflicted on a transsexual woman for being transsexual – not for being a woman or for being a man.

    The judge in the case (Roberts? Not Chief Justice, this was a trial court, but I think the judge shared the name) aceepted Schroer’s view, elaborating that saying one hates and discriminates against neither Christians nor Jews, but only hates and discriminates against converts would not relieve one of liability imposed by laws banning discrimination on the basis of religion. Thus, in the judge’s view, placing the source of the animus in changes in sex not in the existence of sex would likewise fail to remove liability under laws banning discrimination on the basis of sex.

    The law on religion – with religion’s flexibility and direct relevance – provides a better metaphor, a better model for understanding, and a more directly relevant legal tool (which, again, doesn’t automatically make it more effective – see “ceremonial deism” again) for these cases.

    I’m glad religion is being made more and more the central issue, though I’m sad that we have to say it’s illegal to base something on “animus” rather than just saying it’s illegal to legislate your religion.

    *note that the claim conflates sex & gender, but so does federal law.

  7. 7
    dean

    “And if Steve asks you for money, tell him ‘No’, saith the LORD, ‘Jerk. If Steve needs money from me he shouldn’t let his stupid dog dig up my azalias.’/And it came to pass that Steve had no money, and he starved and also he died. Screw Steve.’”

    And this, this is why it is ”Adam and Eve” rather than ”Adam and Steve.”, right? :)

  8. 8
    Modusoperandi

    dean, now you’re just being ridiculous. It’s “Adam and Eve, not Steve and Eve”.

  9. 9
    Michael Heath

    Your killing me modus.

  10. 10
    Hershele Ostropoler

    gshelley @ 1:

    I know some people feel it more “legitimate” if such laws are overturned by the will of the people rather than a court

    … but they’re wrong, since whether people have rights shouldn’t be up for a vote. I prefer the court decision, because it’s not “magnanimously” granting people rights, it’s a recognition — and announcement — that those rights have been there.

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