Monday, January 26, 2015


In 2004, the people of Michigan voted on Proposition 04-2, a proposed amendment to the State’s constitution which defined marriage as a contract between one eligible male and one eligible female.

The amendment was adopted by a significant 58.6% of the voters, with 2,698,077 voting in favor of the proposal and 1,904,319 voting against it.

Eighty of Michigan’s 82 counties voted “Yes.” Only two counties, Washtenaw and Ingham, voted “No.”  The University of Michigan is located in Washtenaw County and Michigan State University is in Ingham County. Both U of M and MSU have enrollments exceeding 40,000 students, who are required to vote in their academic residence counties.

On January 23, 2012, a lesbian couple filed a lawsuit in the U.S. District Court for the Eastern District of Michigan, challenging the state's ban on same-sex marriages. The women are April DeBoer and Jayne Rowse, both nurses. One has an adopted son and the other has two adopted daughters. Michigan law restricts second-parent adoption to married couples.

The Federal District Court Judge ruled that Proposition 04-2 violated the United States Constitution and directed the defendant county clerk to issue a marriage license to the plaintiffs.

On appeal to the Sixth Circuit Court of Appeals in Cincinnati, the decision of the trial court was reversed. The plainiffs appealed to the United States Supreme Court. On November 17, 2014, the Supreme Court agreed to hear the case and consolidated it with three similar cases from other States, giving all the lawyers until April 17, 2015 to file their briefs.

In the days and weeks ahead, there will be much speculation in the newspapers, on television and all over the Internet on whether or not the Supreme Court of the United States will “legalize gay marriage.”

Attorney General Schuette who represents the State of Michigan has capsulized the case exactly as it should be understood. He says the case is all about “who gets to decide the question of gay marriage?”

Schuette argues that the people of Michigan have the power and the authority to amend their constitution, and the definition of marriage is one of those things that the Tenth Amendment leaves to the States to decide.

Like all the other States. Michigan has laws which establish the minimum age for marriage and the degrees of kinship which are eligible to marry. Its statutes require that the parties be free to marry; bigamy and polygamy are prohibited. Michigan has abolished common law marriage; a license is required and the contract of marriage must be witnessed by an eligible clergyman or judge.

The record is clear that the people of Michigan want marriage to be a contract between one man and one woman.

Unhappily, the proponents of gay marriage are unconcerned about the nicities of constitutional governance. Ms. DeBoer and Ms. Rowse are not interested in what the people of Michigan think. They want to be married, and they want the United States Supreme Court to tell them they can marry in Michigan. The voters be damned.

Unhappily, over the years, the Supreme Court of the United States has usurped the power to make laws. The Justices seem to think that appointment to that august bench carries with it the authority to decide what is best for the American people.

No doubt the plaintiffs will argue, and some Justices will agree, that the will of the people, expressed in a 58.6% majority in 2004, no longer applies; that the negative vote of the two university towns presages an “emerging consensus” among the next dominant generation to approve a more permissive code of sexual behavior.

To insist that, in a Republic, the people have the right, the power,  the ultimate authority to make the laws will be be viewed, by some, as caviling, nitpicking pettyfoggery.

So be it. I’ll have more to say on this. Stay tuned.



  1. Judge Brennan:

    Minimum age requirements, kinship restrictions, and prohibitions on bigamy, polygamy, and common law marriage are rules that apply equally to everyone. The man-woman definition of marriage creates a rule that is inherently unequal. The issue is not whether states get to decide how marriage should be regulated, but whether in exercising that power they can regulate marriage unequally. If so, then the Loving case was wrongfully decided. But if the Loving was correct, then proponents of Proposition 04-2 need to explain why gay marriage is legally different from interracial marriage. I expect the Supreme Court to say that no state is required to issue marriage licenses to gay couples, but if they refuse to do so, then they are prohibited from issuing marriage licenses to anyone else.


    Andy Hawks

  2. The phrase “interracial marriage” is inept. Black people and white people belong to the same race; the human race. They are both homo sapiens, creatures of the same species, endowed by their Creator with the physical capacity to procreate offspring. Loving simply recognized that reality and declared that legal barriers to that natural right are unconstitutional.

    Same sex partners are not endowed by nature with the capacity to procreate children. That fact is the very substantial difference upon which legal barriers to same sex marriage are grounded.

    There is nothing unreasonable or unfair about laws that define marriage as a contract between a male and a female. The continuation, protection and advancement of the human race are the primary functions of all civil society, and human communities all over the planet have developed through experience and tradition the protocols for procreation which they deem best suited to those ends.

    It is certainly possible for children to be born of artificial insemination, or pregnancy attributed to unlicensed sexual relations, but it is hardly perceived as unreasonable for the people and their elected legislature to prefer that, normally, the two human beings whose DNA is comingled in a newborn citizen should share the responsibility of nurturing the life they have created.