Editorial: Justices must clarify who defines marriage

The Detroit News

Same sex marriage is heading to the U.S. Supreme Court on April 28, and Michigan will play a leading role in what is expected to be a defining moment for gay rights. We trust the court will provide the clarity necessary to end the contentious and divisive debate over whether states can use marriage laws to deny specific rights to gay couples.

This is an important issue for the court to settle, and with decisiveness, given the current hodge podge of state laws on same sex marriage.

Michigan Attorney General Bill Schuette has taken a lot of flack for defending the state's 2004 voters-approved amendment banning gay marriage. But he is correct in his contention that he is obliged to uphold the state constitution.

He was also right to push the matter through the courts, as Michigan's is the perfect case for the court to decide.

DeBoer v. Snyder, the Michigan case stemming from a lesbian couple's challenge of the gay marriage ban, raises the pertinent questions of whether states can decide how marriage is defined, and whether passing bans is a violation of the equal protection clause of the Constitution.

The other major issue before the court on that same day comes from Ohio, Tennessee and Kentucky, and relates to whether states that ban same-sex marriages must recognize such unions formed in other states.

Michigan is one of only 13 states that still bans gay marriage. As Bursch points out, however, only 11 of 37 states decided to allow gay marriage via the democratic process. Federal courts imposed it on the other 26.

"The entire point of our case is that it is not the job of federal judges to decide something as important as marriage policy," says John Bursch, lead attorney for the state.

He cites the Supreme Court's overturning of the federal Defense of Marriage Act in 2013 as supporting his argument.

"The court struck down DOMA because the federal government had overstepped its authority," Bursch says, "when states are the ones that have the responsibility of defining marriage."

Bursch also argues that unlike matters of race, the federal Constitution is silent with how to define marriage.

"When that's the case, it's up to the people," he says.

But Greg McNeilly, a Republican strategist and advocate of gay marriage, counters the Constitution does not allow states "to vote away rights."

The justices will be weighing it is constitutional to be treat couples differently under the law just because they're gay. McNeilly, president of the Michigan Freedom Fund, along with the ACLU of Michigan and other opponents of the state's ban, contend it violates the equal protection clause of the 14th Amendment.

In the decade since Michigan's gay marriage ban went into effect, social attitudes on gay rights have shifted. It is likely that a similar proposal on the ballot today would not pass.

The inevitability of changing attitudes was one reason The Detroit News urged a "No" vote on the proposal in 2004. Matters of social policy issues are better handled by the Legislature, and should not be enshrined in the Constitution.

But voters did decide to ban gay marriage. And now it is for the Supreme court to decide whether their right to define marriage trumps the civil rights of gay couples.