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Mar 24 2014

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Same Sex Marriage Part One

“Don’t ever take a fence down until you know the reason it was put up.G. K. Chesterton

[J]udges … should be always men of learning and experience in the laws, of exemplary morals, great patience, calmness, coolness, and attention. Their minds should not be distracted with jarring interests; they should not be dependent upon any man, or body of men.  John Adams, Thoughts on Government, 1776

“[R]efusing or not refusing to execute a law to stamp it with its final character…makes the Judiciary department paramount in fact to the Legislature, which was never intended and can never be proper.” James Madison letter to John Brown — 1788

“It has long, however, been my opinion, and I have never shrunk from its expression…that the germ of dissolution of our federal government is in the constitution of the federal Judiciary; an irresponsible body, (for impeachment is scarcely a scare-crow) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all be consolidated into one.”  Thomas Jefferson letter to Charles Hammond — 1821

 

Part One: The Ruling, Immediate Aftermath,the GOP Political Class and the Next Battle

Its been a a long time in coming and as most already know this Friday a Federal judge stuck down Michigan’s Constitutional provision Article 1 § 25

Sec. 25.

To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.

Jayne Rowse and April DeBoerJayne Rowse (left) and April DeBoer, right) had initially challenged the Michigan Adoption Code, which prohibits same-sex couples from jointly adopting the children they raise together. In 2012, they amended their lawsuit (DeBoer v Snyder) to include a challenge to the Michigan Marriage Act, the constitutional amendment passed in 2004.

Attorney General Schuette immediately appealed the decision to the US Court of Appeals for the 6th Circuit in Cincinnati, seeking a stay that would prevent same-sex marriages from being performed in Michigan until the case is ultimately decided and the Court has issued a temporary stay on the case until Wednesday. In addition today Sunday, the governor’s office stated that “Governor’s office: Michigan awaiting appeals court action before recognizing new gay marriages” according to Sara Wurfel, spokeswoman for Gov. Rick Snyder.

Unlike cases in other states, Judge Friedman did not suspend his decision while the Michigan attorney general pursued an appeal. That means clerks could start issuing licenses Monday unless a higher court intervenes.

Most Michigan clerks did not issues licenses opting to waiting on the appeal progress however clerks in at least four of Michigan 83 counties took matters into their own hands opened their office outside of normal business hours waived the 3 day waiting period to accommodate homosexual couples. (No special treatment here right?)  Oakland, Ingham, Washtenaw and Muskegon  more than 300 marriage licenses and presided over more than 100 weddings according to The Detroit Free Press

If you live in these Counties you might drop these Clerks a line asking if they intend to “equally” accommodate  heterosexual couples and be open this coming Saturday

FACTOID: According to “Quick Facts from the US Census”
2013 estimated population of Michigan 2013   9,895,622

9,895,622 vs 300 licenses is what percentage of the total population of Michigan?

But somehow this ruling is one of “equality” when it changes a State Constitution, undermines the 10th and ultimately the 1st Amendment of the US Constitution, long held policy and tradition in favor of a mere faction of a faction of a faction of the total population of a state’s citizens?

Two of the clerks open for business on Saturday were the infamous “V-girls” former House Reps. and uber Progressive and radical feminists Barb Byrum (current Ingham County clerk)and Lisa Brown (current Oakland County Clerk both barred from speaking on the floor of the Michigan state legislature during a House session on a bill that would restrict abortions after 20 weeks

Brown  “failed to maintain the decorum of the House of Representatives.”,in which she said,”Finally, Mr. Speaker, I’m flattered that you’re all so interested in my vagina, but ‘no’ means ‘no,’” Brown said at the end of her speech Wednesday.”

And Barb Byrum, after introducing her amendment to the abortion bill, which would have banned men from getting a vasectomy unless they could provide proof that it was a medical emergency.

“If we truly want to make sure children are born, we would regulate vasectomies,” Byrum said Thursday

Lisa Brown “perform” in “The Vagina Monologues”  with 10 other uber Progressive Democrat legislators and along side the “playwright” Eve Ensler on the steps of the Capitol to protest and to highlight apparently the power of just saying the word vagina? Really, I am not sure?

“For 14 years at V-Day, we’ve seen the power of saying the word ‘vagina.’ We’ve seen how it’s freed women from their shame and empowered them to break the silence and become leaders in their communities. By saying the word ‘vagina’ and making it okay to say the word ‘vagina,’ we take away the humiliation, and fear, and myths that often surround it,” Ensler said in a statement. ”

No commentary necessary.

Lisa Brown and Barb Byrum demonstrated a lawlessness and disregard for Michigan law when after being ordered in an email (to all county clerks) by Michigan’s attorney general to “not to grant gay marriage licenses if Friedman were to have overturned the state ban.” because the state’s intention was to ask for an emergency appeal(which they did and was granted )

Brown stated,“My gut is to follow what the judge says, not what the AG says,” “AG Bill Schuette ordered clerks not to marry gays, Oakland County Clerk Lisa Brown says” Mlive

If these couples suffered emotionally by being “married” and then not it’s because these elected officials governed by “gut” and not the law.

And speaking of “infamous” certainly in Tea Party/Conservative circles. Greg McNeilly of Kent County”married” his long time boyfriend Douglas Meeks, a Lansing-area attorneySaturday in Ingham County. The event was recorded for YouTube

We all know who McNeilly is right?  ”Magpies” and “invasive species” and SB661 ring a bell”?

But he is also…”McNeilly, a GOP strategist who heads the conservative Michigan Freedom Fund, is a former executive director of the Michigan Republican Party and was campaign manager for Republican gubernatorial candidate Dick DeVos in 2006. (and is chief operating officer for The Windquest Group, an investment firm founded by DeVos.)

As word spread, Byrum had performed three wedding ceremonies by 8:30 a.m. By the time her office closed Saturday, she had issued 57 marriage licenses and performed 30 ceremonies. (Ingham County Population, 2013 estimate 281,7233  vs 57 licenses and one heterosexual couple.)

McNeilly said he has no problem reconciling his marriage to widespread opposition to same-sex marriage in the Michigan Republican Party.(And GOP Platform)

“The Attorney General is doing his job as he sees his duty,” McNeilly told the Free Press. “A Reagan-appointed judge (Friedman)(old Greg did not miss the opportunity to drag Reagan into this as if that somehow that in itself would be an  endorsement or an appeasement of the ruling for Conservatives)   did his job as he sees fit. It exemplifies the tolerance and diversity of the Republican Party.”

McNeilly said his marriage could be in a form of limbo pending appeals, but “I’m confident it’s not a matter of if, but when, that marriage “equality” will be the undisputed right for all Americans.” The Detroit News

The DeVos family last year donated to the campaigns of three Holland City Council incumbents who voted against a proposal to expand the city’s anti-discrimination ordinance to include sexual orientation and gender identity.

McNeilly said those donations were mischaracterized  Dick and Betsy DeVos supported those candidates “for their economic performance, not a particular social issue,” he said.

 “GOP strategist, DeVos associate weds partner in one of Michigan’s first gay marriages” Mlive

What McNeilly seems to be implying here is that his employers, the DeVoses may not be opposed to same sex marriage.

By the way, we need to find a new word for “Conservative.”

con·serv·a·tive

kənˈsərvətiv/

adjective

adjective: conservative

1.

holding to traditional attitudes and values and cautious about change, typically in relation to politics or religion

As apparently the new definition includes promoting and pushing uber Progressives policies like ObamaCare, Medicaid Expansion, ends runs around the legislature, (DRIC Bridge,the Snyder/Calley team immediately come to mind) and same sex marriage.

I propose “Constitutionalists” at least until that gets co-opted 57 ways to Sunday (like the term “tea party”)

However, the reason I single out McNeilly at all is because he is part of the political MIGOP class, an insider. And if he is politically comfortable with being publicly supportive of same sex marriage by example then it’s a real indicator of the same acceptance and direction of the MIGOP. As of this writing I have not read of any GOP insider weighing in on McNeilly’s interpretation of the GOP’s “tolerance and diversity”  I receive Saul Anuzis’s Weekly Musing 3-23-14 and he never even mentioned the ruling let alone a reaction to McNeilly’s very public coming out and his speaking for the GOP. (More about that in Part Two)

THE RULING:

In his ruling the Judge used his option to adhere to Stare decisis a legal principle by which judges are obliged to respect the precedent established by prior decisions ) following the rulings of other Federal judges in Utah, Oklahoma, Virginia, and Texas  who also stuck down state constitutional law,using the 14th and 5th Amendment in his ruling and citing DOMA.

The Fourteenth Amendment (Amendment XIV) to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments. The amendment addresses citizenship rights and equal protection of the laws, and was proposed in response to issues related to former slaves following the American Civil War

The Fifth Amendment (Amendment V) to the United States Constitution is part of the Bill of Rights and protects against abuse of government authority.

The Amendment also has a Due Process Clause (similar to the one in the 14th Amendment) as well as an implied equal protection requirement (Bolling v. Sharpe, Bolling v. Sharpe, 347 U.S. 497 (1954), is a landmark United States Supreme Court case which deals with civil rights, specifically, segregation in the District of Columbia’s public school

In his ruling the Judge also cited United States v. Windsor, 570 U.S. ___ (2013) (Docket No. 12-307), is a landmark case[1][2][3] in which the United States Supreme Court held that restricting U.S. federal interpretation of “marriage” and “spouse” to apply only to heterosexual unions, by Section 3 of the Defense of Marriage Act (DOMA), is unconstitutional under the Due Process Clause of the Fifth Amendment, because doing so “disparage[s] and … injure[s] those whom the State, by its marriage laws, sought to protect in personhood and dignity.”

Very important to note in the DOMA ruling was The justices didn’t go as far as saying “that all states must allow such marriages to take place within their borders”

And under the principle of  “FOLLOW THE MONEY”
The DOMA ruling opened the doors to Social Security, pension and bankruptcy benefits, along with family medical leave protections and other federal provisions, (paid for your tax dollars) to gay and lesbian couples legally married in states that recognize such unions.

The DOMA decision was a 5-4 SCOTUS decision (Judge Kennedy once again providing the swing vote)

However it was not without dissent:

In a thunderous dissent, read from the bench, Justice Antonin Scalia slammed the majority for its “exalted conception of the role of this institution” — the Supreme Court — “in America.”

“Few public controversies touch an institution so central to the lives of so many, and few inspire such attendant passion by good people on both sides,” he said. “Few public controversies will ever demonstrate so vividly the beauty of what our (Constitution) framers gave us, a gift the court pawns today to buy its stolen moment in the spotlight: a system of government that permits us to rule ourselves.”

– “This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation.

(The Tenth Amendment (Amendment X) to the United States Constitution, states the Constitution’s principle of federalism by providing that powers not granted to the federal government by the Constitution, nor prohibited to the States, are reserved to the States or the people.)

The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.”

– “By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition. … The result will be a judicial distortion of our society’s debate over marriage — a debate that can seem in need of our clumsy ‘help’ only to a member of this institution.”

– “In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated….

…To besure (as the majority points out), the legislation is called the Defense of Marriage Act. But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution

Judge  Scalia discern-fully notes that those of us who do oppose same sex marriage are not haters as many of those who support it have accused.

Defedning MarriageThose of us who oppose same sex marriage simply have a different position based a long standing tradition of one man one woman marriage, our 1st Amendment right to freely exercise our religion and our state’s 10 Amendment Rights under the US Constitution.

– “When the Court declared a constitutional right to homosexual sodomy (2003), we were assured that the case had nothing, nothing at all to do with ‘whether the government must give formal recognition to any relationship that homosexual persons seek to enter.’ Now we are told that DOMA is invalid because it ‘demeans the couple, whose moral and sexual choices the Constitution protects.’ … It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue herewhen what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it.

I promise you this: The only thing that will ‘confine’ the Court’s holding is its sense of what it can get away with.”

Besides Constitutional adherence, Judge Scalia in essence is not just warning about the one ramification of the DOMA decision. we will also soon have homosexual marriage forced upon all states by the Supreme Court, but the unconstitutional imbalance of power being displayed by the judicial brand of government. A “run away court”

In addition to United States v. Windsor, Friedman also cited Loving v. Virginia.

Loving v. Virginia, 388 U.S. 1 (1967),[1] was a landmark civil rights decision of the United States Supreme Court which invalidated laws prohibiting interracial marriage.

The judge is using a civil rights case in his decision, stating “the Court rejected (state of) Virginia’s argument that “under the Constitution the regulation and control of marital and family relationships are reserved to the States.” Kitchen, 2013 U.S. Dist. LEXIS 179331, at *83-84(citation omitted). This position, which the state defendants advance again in the present case, is just as ineffectual now as it was in Loving.”

The judge is saying that homosexuality is a civil right and that states rights, the 10th Amendment does not apply in this case.

And here lies the next battle

Michigan’s non-discrimination law, the Elliott-Larsen Civil Rights Act, was written and passed in 1976. The law bans discrimination in employment, housing, and public accommodations based on religion, race, color, national origin, age, sex, height, weight and marital status.

However Michigan’s Civil Rights law, the Elliot-Larsen Act does not contain the language” sexual orientation”  Attempts have been made to amend the act to include sexual orientation, gender identity, and gender expression over the last ten years. So far, these efforts have been met with little success.

However, it does contain the words,”martial status”

How will the language of “martial status” be interrupted if the appeals court upholds the ruling?

I do not know, I am not a lawyer. However I do know that the battle is not over and Michigan’s Elliot-Larsen will be another target.

Part Two: History, Conclusion,Culture, What You Can Do

Permanent link to this article: http://grassrootsmichigan.com/?p=4131

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