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Michigan AG urges justices to uphold gay nuptials ban

Melissa Nann Burke
Detroit News Washington Bureau

Washington — Michigan wants the U.S. Supreme Court to leave it to the states how to define marriage, urging the justices to uphold the state’s ban on gay nuptials and deny a constitutional right to marry.

In a brief filed Friday, attorneys for the Michigan Attorney General’s Office said the federal judiciary lacks the authority to override the democratic process as exercised by Michigan voters who approved the state’s ban in a 2004 referendum.

“This case is not about the best definition of marriage or any stereotypes about families. Families come in all types, and parents of all types — married or single, gay or straight — love their children,” the attorneys write.

“This case is about whether the Fourteenth Amendment imposes a single marriage view on all states, such that the people have no right to decide. It does not.”

The lawyers said it would be “stranger still” to hold that the marriage “system” in existence for thousands of years is unconstitutional.

April DeBoer and Jayne Rowse of Hazel Park have asked the high court to do exactly that. They argue that Michigan’s ban on gay marriage harms their children. A reply to the state’s brief by the couple’s lawyers is expected by April 17.

The justices are scheduled to hear two-and-a-half hours of oral arguments on April 28 testing same-sex marriage restrictions in Michigan, Kentucky, Tennessee and Ohio.

A year ago, Detroit federal Judge Bernard Friedman found Michigan's gay marriage ban unconstitutional because it violated equal protection rights. A three-judge panel on the U.S. 6th Circuit Court of Appeals last fall upheld bans in those states.

Michigan in its brief said differing views on gay marriage are not that one side promotes equality, justice and tolerance, while the other endorses the opposite. The differences are “simply different conceptions of what role the institution should play in our society.”

The state maintains that, because the Constitution is silent on how to define marriage, the issue falls to the people, who may exercise the democratic process through the ballot box at the state level.

In their brief, lawyers for Michigan quote Justice Anthony Kennedy’s opinion last year upholding Michigan’s constitutional amendment barring affirmative action: “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 rational grounds,’” the attorneys wrote.

Kennedy is considered the swing vote on the nine-justice high court.

Friend of the court briefs supporting the restrictions on gay marriage are due Friday, although some have already filed. Alabama Gov. Robert Bentley told the justices that same-sex marriage destroys the “rights of children to be connected to their biological parents.”

The Supreme Court received more than 80 amicus curiae briefs supporting gay marriage by its filing deadline earlier this month.

Among the filers were 90 sitting and former public-office holders from around Michigan, and a coalition of 379 employers including Dow Chemical Co. and 20 other Michigan companies. High-profile Republicans including former Michigan Gov. William Milliken and former state Attorney General Mike Cox also joined an amicus brief supporting same-sex marriage.

Gov. Rick Snyder has said the state will recognize more than 300 gay marriages performed during a brief time when they were permitted in Michigan last year.

mburke@detroitnews.com

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