Michigan Marriage Fiasco

by Ed Whelan

Now that I have some time, here are some brief observations on the recent (March 21) federal district-court ruling invalidating Michigan’s constitutional provision defining marriage:

1. Federal district judge Bernard Friedman ruled that the Michigan constitutional provision doesn’t survive rational-basis review. As I’ve made clear, I don’t think that the Supreme Court’s ruling in Windsor against the federal Defense of Marriage Act augurs well for state marriage laws. That said, any judge who holds that marriage laws don’t survive rational-basis review isn’t properly applying that very deferential standard. (In this regard, I’ll note that the First Circuit panel that struck down DOMA found it a simple matter (see page 14 of opinion) to determine that DOMA would survive conventional rational-basis review.) As Prop 8 proponents explained in their Ninth Circuit brief:

Before the recent movement to redefine marriage to include same-sex relationships, it was commonly understood and acknowledged that the institution of marriage owed its very existence to society’s vital interest in responsible procreation and childrearing.… [I]t is hardly surprising that every appellate court decision, both state and federal, to address the validity of traditional opposite-sex marriage laws under the federal Constitution has upheld them as rationally related to the state’s interest in responsible procreation and child-rearing.

2. Judge Friedman’s lawlessness is equally manifest in his extraordinary refusal to stay his ruling pending appeal. Recall that in January the Supreme Court, without recorded dissent, intervened to block federal district judge Robert J. Shelby’s ruling against Utah’s marriage laws from taking effect. As other federal judges have understood, that action clearly signaled that courts ruling against state marriage laws should stay their rulings pending appeal. Unless Judge Friedman is an utter idiot (and I have no reason to think he is), he should have known that his ruling would be stayed by a higher court. (The Sixth Circuit issued a temporary stay the next day and later extended that stay for the entirety of the appeal.) Yet he was happy to unleash the chaos of same-sex couples rushing to marry during the interim.

3. Michigan governor Rick Snyder’s response has been remarkably weak and confused. Despite the fact that the supposed marriages that occurred during the interim are unlawful under the state constitution, Snyder has publicly stated that “we believe those are legal and valid marriages.” To be sure, he has also said that the state won’t recognize them as marriages while the stay is pending. But he has gratuitously undermined his defense of the state constitutional provision by mischaracterizing the supposed marriages as “legal and valid.” He also made it very easy for Attorney General Eric Holder to decide that the federal government would recognize those supposed marriages.

4. Meanwhile, Michigan attorney general Bill Schuette, who recently wrote a fine op-ed explaining why it is his duty to defend his state’s marriage laws, has been oddly silent on how he regards the supposed marriages.

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