Michigan Marriage Amendment Being Challenged

Michigan Marriage Amendment Being Challenged August 23, 2013

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.

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