Lansing — There isn’t much precedent for voter-approved state constitutional amendments being tossed out by federal judges, experts said Tuesday as Michigan’s constitutional ban on gay marriage gets scrutinized this week in a federal courtroom.
In 1995, the U.S. Supreme Court ruled that voter-imposed term limits could not be extended to members of Congress in a Missouri case.
The decision invalidated term limits for Michigan’s members of Congress, while term limits voters added to the state constitution in 1992 for the state offices remained in place, said Bob LaBrant, an elections law attorney in Lansing.
“After that Missouri litigation, that was considered null and void,” said LaBrant, senior counsel for the political consulting firm Sterling Corp.
If U.S. District Judge Bernard Friedman rules Michigan’s 2004 ban on gay marriage is unconstitutional, it wouldn’t be the first time a federal court has overturned a voter-initiated constitutional amendment.
In November 2012, the 6th Circuit U.S. Court of Appeals narrowly ruled Michigan’s 2006 ban on affirmative action violated the U.S. Constitution’s equal protection clause.
But that case remains pending before the U.S. Supreme Court after Attorney General Bill Schuette appealed the appellate court’s decision. The high court heard arguments in October on the state’s ban on race-based preferential treatment in government hiring and college admissions.
“This is the only example that I can think of,” said John Pirich, another Lansing attorney who has worked on ballot campaigns.
Since 1963, voters have approved 32 of 74 proposed constitutional amendments, according to the Secretary of State’s office.