Michigan's same sex marriage ban declared unconstitutional

[Danny]

Michigan Supreme Court ruled that the state's same sex marriage ban is unconstitutional. Now same sex marriage can be performed.

Thanks a heap to the Lesbian couple from Hazel Park that wants to adopt each other's kids. We the people of Michigan voted to make same sex marriage illegal. I can't wait for religious fanatics to go Lansing and propose new laws to keep homosexuals from taking marriage vows.

[Gistok]

Before you start letting your emotions run Danny... some facts need to be stated when starting a new thread....

Judge Bernard Freedman today ruled that the State Supreme Court Ruling was not legal.

[MikeyinBrooklyn]

Happy for the outcome, but not the process. As I've said before here and elsewhere, gay marriage prohibition is not actually unconstitutional. It is unfair, unkind and bad policy. The legal cases for gay marriage emphasize those things rather than the Constitution. It is a sad day when judges are the legislators of last resort. I still hope that the legalization of gay marriage is put on the ballot here in Michigan [[which I predict would pass with 60% of the vote), so that there can be a legal underpinning for gay marriage beyond a benevolently-intended judge's legal fiction. And let's not forget, when a judge grants you your rights, another judge can just as easily take them away. Suppose this decision is over-turned, which would occur if the appeals court is consistent with the previous decades of rulings on the matter, what happens then? Are gay marriages voided? Our actual rights are specific; things that are not defined in the US Constitution are the domain of state and local law. We should focus on correcting bad law [[like anti-gay marriage laws) through legislating or referendum, not trying to see words that are not actually in the Constitution. It's funny to me [[in a pathetic way, not a ha-ha way) that some people can find the subtext of the Constitution without finding the text.

[313WX]

There was no realistic/logical reason for it to have been banned as long as it was.

[rb336]

Happy for the outcome, but not the process. As I've said before here and elsewhere, gay marriage prohibition is not actually unconstitutional.

Ever heard of "equal protection"?

[DetroiterOnTheWestCoast]

Happy for the outcome, but not the process. As I've said before here and elsewhere, gay marriage prohibition is not actually unconstitutional. It is unfair, unkind and bad policy. The legal cases for gay marriage emphasize those things rather than the Constitution. It is a sad day when judges are the legislators of last resort. I still hope that the legalization of gay marriage is put on the ballot here in Michigan [[which I predict would pass with 60% of the vote), so that there can be a legal underpinning for gay marriage beyond a benevolently-intended judge's legal fiction. And let's not forget, when a judge grants you your rights, another judge can just as easily take them away. Suppose this decision is over-turned, which would occur if the appeals court is consistent with the previous decades of rulings on the matter, what happens then? Are gay marriages voided? Our actual rights are specific; things that are not defined in the US Constitution are the domain of state and local law. We should focus on correcting bad law [[like anti-gay marriage laws) through legislating or referendum, not trying to see words that are not actually in the Constitution. It's funny to me [[in a pathetic way, not a ha-ha way) that some people can find the subtext of the Constitution without finding the text.

I guess its not unconstitutional unless you believe the constitution provides equal rights....

And I'd say when the VOTERS grant your rights, other voters can just as easily take them away. That's why we needed to courts to invalidate the Jim Crow laws as well. I doubt the voters in Alabama ever would have.

[MikeyinBrooklyn]

There was no realistic/logical reason for it to have been banned as long as it was.

Agreed, but I think I can explain the illogical reason: major societal institutions change slowly. Even people who don't have a "hate" based motive were not for legal marriage 20 years ago. Hell, even many gay people weren't for it then. Everyone was raised in a world where mom & dad were married, or at least where that was the norm. But the idea has taken hold over time, and a majority of people have shifted their position on the issue. People need time to adjust to change. Laws can be changed instantly; culture needs time to warm up.

[sumas]

Good job judge. Equal rights should be law every where in our nation.

[Scottathew]

I'm happy with the outcome. I have a feeling if they put it up for a vote today that the numbers will have changed greatly, perhaps even enough to get a majority to overturn it.

As more and more bigoted old people die off and are replaced by young people that are more loving and accepting of others the overall attitude will change.

[Hypestyles]

I wonder how hardcore will Bill Schuette start appealing this? If you're a fiscal conservative, the resource prioritizing of this by the Atty. General's office should be at least somewhat concerning..

I hope that urban Detroit's pastoral class doesn't start whipping up their congregations over this, especially considering the much-more pressing issues with the ongoing city bankruptcy and the state of public services here.

[DetroiterOnTheWestCoast]

Saugatuck could become a nice wedding destination for the Chicago crowd.

[professorscott]

Why we got here, by the way, underpins a key Libertarian argument about government in general. The difficulties here, and the reason these cases are filed, is that governments provide special benefits to people whom the government decides are "married", which do not equally apply to others. So in the adoption case at hand here,

1. Any single person can adopt.
2. Any married couple can adopt.
3. No two other people can adopt.

By what token does that make any logical sense at all?

Here is the Libertarian view on marriage.

1. If you belong to a religion that recognizes marriage as being any special kind of a thing, then marriage to you is whatever your religion says it is.
2. If you don't, then marriage is a private contract between two adults.
3. The state has absolutely no business in deciding who should get married, as it is either a religious matter or a private, contractual matter.
4. The state absolutely steps in it when it decides to provide benefits to certain classes of people based on their life situation, and the state should stop doing all of that.

Once you start providing benefits to only people in certain situations, you are certainly skating right on the edge of the equal protection clause, and may not be astonished when a judge calls you out on it.

[Wesley Mouch]

Why we got here, by the way, underpins a key Libertarian argument about government in general. The difficulties here, and the reason these cases are filed, is that governments provide special benefits to people whom the government decides are "married", which do not equally apply to others. So in the adoption case at hand here,

1. Any single person can adopt.
2. Any married couple can adopt.
3. No two other people can adopt.

By what token does that make any logical sense at all?

Here is the Libertarian view on marriage.

1. If you belong to a religion that recognizes marriage as being any special kind of a thing, then marriage to you is whatever your religion says it is.
2. If you don't, then marriage is a private contract between two adults.
3. The state has absolutely no business in deciding who should get married, as it is either a religious matter or a private, contractual matter.
4. The state absolutely steps in it when it decides to provide benefits to certain classes of people based on their life situation, and the state should stop doing all of that.

Once you start providing benefits to only people in certain situations, you are certainly skating right on the edge of the equal protection clause, and may not be astonished when a judge calls you out on it.

Precisely my libertarian opinion.

The original problem wasn't government discrimination, it was government using marriage to provide unequal treatment. Stop it.

[SWMAP]

Many people the world over believe that marriage can be a big tent that houses several people, not just two! We are really moving closer to the Muslims and the original Mormons. It's a big, big tent.

[MikeyinBrooklyn]

I guess its not unconstitutional unless you believe the constitution provides equal rights....

And I'd say when the VOTERS grant your rights, other voters can just as easily take them away. That's why we needed to courts to invalidate the Jim Crow laws as well. I doubt the voters in Alabama ever would have.

The Constitution provides for rights in 2 ways:
1) Limiting and delineating the powers of government.
2) Guaranteeing specific rights through amendment.
Neither of those are applicable here. Denial of the ability to marry someone of the same sex is not discrimination in the legal sense because it allows all people to equally marry someone of the opposite sex [[I am not advocating that definition of marriage), and prohibits all people equally from marrying someone of the same sex.

As I have noted before, laws prohibiting gay marriage are in no way comparable to Jim Crow laws, either morally or legally. To suggest that they are comparable is like saying a fender bender is the Challenger explosion. It lacks a realistic perspective, and trivializes the actual damage done by the greater situation. First, Jim Crow laws requiring segregation in public places and prohibiting black people from voting or serving on juries violate specific clauses in the Constitution. All legal arguments for them, from Reconstruction onwards, were in willful violation of the Constitution; the politics involved superceded the law involved for the judges then. Second, not being able to get married is not the life-crippling shackle on gay people that Jim Crow laws were. Black people found it near impossible to have personal liberties, safety or prosperity generation upon generation. Gay people, thankfully, have been fully able to vote, own property, start businesses, and mostly go about our lives for ages. The violations of rights experienced by blacks in the Jim Crow era were violations of codified rights in the Constitution, making them subject to legal remedy. The rights violation regarding marriage equality is one of fairness we [[rightfully) perceive, but not one of law. The solution for legal unfairness is to change the law. That remains undone here.

Court action for gay marriage can feel great from the perspective of wanting gay people to be able to get married. But it is not the same as enacting a change in the law. That should still be done, and I hope we do. That will be the real, if less celebrated, victory. And the permanent one. Gay people need fewer judges taking mercy on us and more legislators and voters expanding the definition of marriage.

[dbc]

Mikey:

Gay marriage prohibitions violate the due process and equal protection clauses of the fourteenth amendment of the Constitution.

Also, courts have deemed that an attachment to tradition, alone, is insufficient justification for violating due process and equal protection as it relates to gay marriage. Thus, courts have shot down states' arguments that the public's reluctance to a change from "traditional" marriage justifies prohibiting two homosexuals from marrying.

[MikeyinBrooklyn]

Mikey:
Gay marriage prohibitions violate the due process and equal protection clauses of the fourteenth amendment of the Constitution.

How is it a violation of due process? I can't understand that thinking at all. Gay people are fully entitled to the same protections and rights in legal proceedings as are straight people. If Michigan said that gay people can't get a lawyer when charged with a crime, that would be a violation of due process. Or if we couldn't serve on juries. But in the administration of justice gay people have the same extant protections that straight people do. And the same access to voting and legislating, too.

Equal protection does not come into play because, as I noted in the earlier post, all people have an equal right to get married; i.e., all people have the right to marry someone of the opposite sex. That specific law does not discriminate. I favor extending the definition of marriage to include same-sex unions, but that doesn't mean the Constitution is violated if it's not. People are confusing good and fair with the Constitution, which is appropriately void of moral judgments. The moral judgments, such as expanding the definition of marriage, is for the people, not the court.

[dbc]

The Supreme Court has determined marriage is a fundamental right protected by the guarantee of liberty under the due process clause. Prohibiting marriage based solely on sexual identity intrudes on homosexuals' liberty. Saying someone has the right to marry any person he/she wants as long as the person is of the opposite sex is no liberty at all. Instead it is unreasonable government interference, for which the state can provide no legally compelling interest to justify its interference.

Similarly, with equal protection, saying you can marry someone as long as he/she is of the opposite sex is absolutely discriminatory. Prohibiting marriage based on sexual identity adversely affects only those of a specific class, i.e., homosexuals. However, no government interest is advanced by only prohibiting homosexuals from marrying one another. In other words, it discriminates against homosexuals because it forbids them from enagaging in the fundamental right to marry the person of their choice without any rational justification.

[DetroiterOnTheWestCoast]

Equal protection does not come into play because, as I noted in the earlier post, all people have an equal right to get married; i.e., all people have the right to marry someone of the opposite sex. That specific law does not discriminate. I favor extending the definition of marriage to include same-sex unions, but that doesn't mean the Constitution is violated if it's not. People are confusing good and fair with the Constitution, which is appropriately void of moral judgments. The moral judgments, such as expanding the definition of marriage, is for the people, not the court.

Fortunately the courts are finding this argument as ridiculous as it is. To say that the law is not discriminatory because a gay man can marry a lesbian, is truly a specious argument. Its basically the same argument made by Virginia when they were defending the ban on inter-racial marriage: that it did not discriminate because it applied equally to all races.

Since marriage confers many legal and financial benefits, it goes way beyond a simple issue of "moral judgement".

[313WX]

How is it a violation of due process? I can't understand that thinking at all. Gay people are fully entitled to the same protections and rights in legal proceedings as are straight people. If Michigan said that gay people can't get a lawyer when charged with a crime, that would be a violation of due process. Or if we couldn't serve on juries. But in the administration of justice gay people have the same extant protections that straight people do. And the same access to voting and legislating, too.

Equal protection does not come into play because, as I noted in the earlier post, all people have an equal right to get married; i.e., all people have the right to marry someone of the opposite sex. That specific law does not discriminate. I favor extending the definition of marriage to include same-sex unions, but that doesn't mean the Constitution is violated if it's not. People are confusing good and fair with the Constitution, which is appropriately void of moral judgments. The moral judgments, such as expanding the definition of marriage, is for the people, not the court.

The purpose of the judicial system is to oversee that "the people" are doing what's legally right when voting and legislating. Just because "the people" and legislators vote a measure into law doesn't mean it's constitutional.

Courts don't give a rat's ass about moral judgments.

[Scottathew]

I hope that urban Detroit's pastoral class doesn't start whipping up their congregations over this, especially considering the much-more pressing issues with the ongoing city bankruptcy and the state of public services here.

And also the history of oppression that black people have experienced, and the racism that they still experience today. Hopefully that will make people realize that there are more important things to do than to unfairly go after people because of religious beliefs and prejudices.

[trotwood]

Judge Friedman's ruling makes me so very very proud to live in Michigan! I applaud&congratulate April DeBoer and Jayne Rowse. I wish them&their children all the love and happiness life has to offer.
I hope this ruling is allowed to stand. Equality means nothing if it's only for a few rather than for all.
"Those who deny freedom to others deserve it not for themselvesL
and,under a just GOD,
cannot long retain it." -Abraham Lincoln April 6,1859

[noise]

I'm curious to know where MikeyinBrooklyn earned his JD and what his legal background has been since earning it. I know he claims to have bestowed upon us his great wisdom on this matter numerous times in the past, but I may have missed it.

Only the facts, because the opinions of a misguided historically-discriminated-against person is not of much interest to me.

[oladub]

I have a 1953 copy of The American College Dictionary that defines marriage as 1. the legal union of a man and a woman for life. 2. the formal declaration of a contract by which act a man and a woman join in wedlock 3. any intimate union.

New versions of the Webster dictionary define marriage to include “The state of being united to a person of the same sex in a relationship like that of a traditional marriage.”

Much of the disagreement about what constitutes marriage have to do with the changing definition. Older people were taught one definition, younger people another definition. We are speaking different languages. Constitutionally interpreting the legal definition of marriage changes with changes in the dictionary. It was clever to have made those changes. But as SWMAP has already pointed out, why does equal protection have to just allow two people to marry? Muslims and Mormons or anyone else might choose to participate in group marriages. Why aren't such people also allowed to marry? Time to revise the dictionary again to again expand the law. Think of all the new and nebulous opportunities for divorce lawyers and marriage councilors.

What I want to know [[quiz time) is with this most recent change, can gays marry their brothers or fathers or lesbians marry their sisters and mothers. If not, what is the legal basis since those restrictions were to limit birth defects. If so, then why can't heterosexuals have incestuous marriages for reasons of equal protection?

[cjd]

I'm curious to know where MikeyinBrooklyn earned his JD and what his legal background has been since earning it. . .

I'm equally curious to know what your legal background is as well.

Moreover, w/r/t everyone that has said "Good job judge," I am curious to know if they really mean he did a good job [[being a fair and impartial judge) or whether they really mean "I like the outcome." My guess is the latter. That's ok too, but quite a different assertion.

There isn't anyone [[with any legal knowledge) that followed this trial that thought the decision was in doubt with this judge. Everything, including the evidentiary rulings pointed to this foregone conclusion. The relatively short/fast opinion and denial of stay only confirm the predictions.