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Schuette Applies Affirmative Action Ruling to Gay Marriage Appeal: Take the Poll

Attorney General Bill Schuette argues the high court decision upholding voters’ rights to decide legislative issues should be applied in his appeal of a lower court decision declaring voters' ban on same-sex marriage unconstitutional.

Michigan Attorney General Bill Schuette believes the U.S. Supreme Court set a precedent in an affirmative action ruling that should be applied to his appeal of the Michigan gay marriage ruling. (Photo: Getty Images)
Michigan Attorney General Bill Schuette believes the U.S. Supreme Court set a precedent in an affirmative action ruling that should be applied to his appeal of the Michigan gay marriage ruling. (Photo: Getty Images)

Michigan Attorney General Bill Schuette is arguing that the U.S. Supreme Court’s ruling upholding the state’s voter-backed ban on using affirmative action as a criteria in determining college admissions should guide the court in deciding Michigan’s gay marriage case.

Schutte filed a brief Wednesday with the 6th U.S. Circuit Court of Appeals in which he repeatedly argued that because the Supreme Court had upheld Michigan voters’ rights in the affirmative action case, the same logic should be used in determining the gay marriage case, the Detroit Free Press reports.

Schutte is appealing a March ruling by U.S. District Judge Bernard Friedman, who said the 2004 voter-backed ban on gay marriage is a violation of same-sex couples’ due process rights under the U.S. Constitution.

In a statement after the Supreme Court’s 6-2 decision on the affirmative action case, Schuette called the decision “monumental” and “a victory for the Constitution, a victory for Michigan citizens, and a victory for the rule of law.”

The ban on using affirmative action to decide college admissions was approved by voters in 2006 and Schuette said their actions “enshrined the basic concept of equality and fairness into our Constitution.”

“It is fundamentally wrong to treat people differently based on the color of their skin,” he said after the high court’s April 22 ruling.

In his 6th Circuit brief Wednesday, Schuette noted that as Justice Anthony Kennedy explained in the affirmative action ruling, it is “demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and moral grounds. Democracy does not presume that some subjects are either too divisive or too profound for public debate.”

He said the case, which initially had been brought by April DeBoer and Jayne Rowse who said their inability to marry prohibited them from adopting each other’s children, isn’t centered on adoption issues.

“As a society, we wish that all children had loving parents, no matter what their sexual orientation may be,” he wrote. “This appeal is also not about whether there is a fundamental right to same-sex marriage. The district court did not reach that issue, correctly recognizing that marriage is a topic left to the people to decide at the ballot box. Out of respect for democracy and to be consistent with the restrained and limited role of a federal court judging the rationality of a legislative choice left to the people, this Court should reverse.”

Michigan is one of 33 U.S. states where referendums defining marriage as between one man and one woman have been passed. In the 17 states with laws legalizing gay marriage, six resulted from court decisions, eight resulted from action in legislatures and three were by popular vote.

“If the people of a State choose, as the people of 33 states including Michigan have, to retain the definition of marriage they have always recognized, so that marriage is a union of one man and one woman, their decision is also entitled to respect,” he wrote.

DeBoer and Rowse have until early June to respond to Schuette’s brief. The case is expected to be decided by the U.S. Supreme Court, perhaps later this year. Several other states

Take the poll and talk to us in the comments:

  • Can the same reasoning in the decision upholding Michigan’s voter-backed ban on the use of affirmative action as admissions criteria at universities be applied in an appeal of a ruling declaring Michigan’s voter-backed gay marriage ban unconstitutional?
Love All May 08, 2014 at 08:47 PM
Apparently Mr. Schuette overlooked this particular aspect of the Constitution,,,, so here's a refresher for he and others that think they can simply vote to discriminate against people they do not like. The 14th Amendment to the Constitution of the United States of America 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Love All May 08, 2014 at 08:58 PM
If 27 simple words that make up the 2nd Amendment of the Constitution can be construed to allow people to own and carry semi automatic machine guns,,, then the 14th Amendment can easily grant the rights of gay men and women to marry the people they love and enjoy the same rights and misery that I do as a "happily married man". Nuff'said!!!
Gerry P May 12, 2014 at 07:59 PM
Would be nice if the survey button actually worked Schuettw is just pulling at straws. Sex marriage will happen

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