There is one thing that Michigan Attorney General Bill Schuette has in common with April DeBoer and Jayne Rowse, the two women who are challenging Michigan’s bigoted same-sex marriage ban: they both want their case to go to the Supreme Court of the United States as quickly as possible. The difference is that Bill Schuette is using our tax dollars to fight the tides of history and progress, LOTS of our dollars because, as we are all acutely aware, lawyers don’t come cheap.
In his filing to the SCOTUS this week asking them to take the case, Schuette trots out some of his classical bigotry. You can read the full filing HERE. I have excerpted some of the more telling bits below.
The opening sentence sets the tone for the rest of the filing by completely mischaracterizing the nature of the case:
This case comes down to two words: who decides. The history of our democracy demonstrates the wisdom of allowing the people to decide important issues at the ballot box, rather than ceding those decisions to unelected judges.
This case is NOT about “who decides”. This case is about whether or not banning same-sex marriage denies a segment of our population equal protection under the 14th Amendment. Schuette’s argument is that marriage is not a “fundamental right” in America, unless you are straight:
Michigan fully recognizes that the state democratic process must yield if the majority adopts a policy that conflicts with the U.S. Constitution. But this is not such a case. The Constitution does not define marriage; rather it leaves that task to voters at the state level. The right asserted here—to marry someone of the same sex—does not qualify as a fundamental right under this Court’s substantive-due-process test, which requires a right to be “objectively, ‘deeply rooted in this Nation’s history and tradition.’” Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997). Same-sex marriage does not have those necessary deep historical roots.
In other words, the institution of marriage IS a fundamental right, but not for same-sex couples.
When the Supreme Court struck down anti-miscegenation laws when they decided Loving v. Virginia in 1967, they overruled the states that continued to prohibit mixed-race marriages and had this to say about it:
Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
In overturning bans on mixed-race marriages, SCOTUS acted to prevent what is commonly known as “the tyranny of the majority” – the ability of majority to trample the rights of minority populations and to deny them their basic rights. This is exactly what most of the Circuit Court decisions on same-sex marriage have done, as well.
In his filing, Schuette even goes so far as to compare same-sex marriage to assisted suicide, citing a case that rejected “the argument that assisted suicide was a fundamental right because accepting that proposition would require ‘revers[ing] centuries of legal doctrine and practice, and strik[ing] down the considered policy choice of almost every State’.”
As he has in the past, Schuette also continues to put forth the argument that marriage is for regulating sexual relationships:
[T]he State has an interest in encouraging men and women to marry because of its interest in stable relationships for the procreation and raising of children.
This argument is one that couples unable, unwilling, and/or uninterested in having children should find incredibly offensive. It also ignores the fact that same-sex couples are quite capable and qualified to raise healthy, well-adjusted children. In fact, plaintiffs April and Jayne just adopted their fourth child together yesterday. However, only one of them is the legal parent due to the law that was the target of their original complaint.
Schuette concludes his argument with an absurd argument that even those of use who support marriage equality may not want it legalized because it would get in the way of this “time-tested building block of society” and we might not understand the long-term, unintended consequences of making marriage legal for all of our citizens. At the end of the day, Schuette says, “reasonable people of good will might think it is at least debatable” that same-sex couples should be allowed to marry so we should prevent it.
Citizens of a State might not have wished to alter a central building block of society without knowing more about its long-term impact. Voters, even those who approve of same-sex relationships, might not wish to alter the definition of this time-tested building block of society. A rational voter might worry about the law of unintended consequences, and might conclude that there is some risk that changing the definition of marriage to remove its inherent connection to procreation might undermine the value of marriage in the long term as an institution for linking parents to their biological children. […]
Considering all of these points supporting defining marriage as between a man and a woman, reasonable people of good will might think it is at least debatable that this definition advances the State’s interest in encouraging parents to stick together to care for and raise their children. And if it is at least debatable, then federal courts have no authority to overturn the people’s legislative choice.
Bill Schuette is a bigot. He has been on an anti-LGBT crusade for many years and now has the keys to the state bank account to fund his personal animosity toward the LGBT community. When we say “elections have consequences”, this is what we are talking about.
If you’d like to help pay Jayne and April’s legal bills in this historic fight, please click HERE and give generously. Donations are now tax deductible.