State to highlight will of voters in gay marriage case

Detroit — When attorneys for the state of Michigan appear before the U.S. Supreme Court in less than two weeks to make their case to uphold the state's ban on gay marriage, they will stress to the nine justices it's the will of the people that dictates how they should rule.

"This really is a case about who decides (who defines marriage). ... Voters, or will the federal courts make that decision," Michigan Attorney General Bill Schuette told The Detroit News Wednesday.

"This is a provision in the Michigan Constitution," Schuette said. "Who decides, federal constitutional concerns or decisions made by people in states across this country?"

Since the U.S. Constitution is silent on the issue of gay marriage, Schuette and lead attorney John Bursch said, legal precedent says it's up to the states to make the decision whether marriage is between one man and one woman. Michigan voters approved a constitutional amendment in 2004 saying so, they said.

Bursch, a former Michigan solicitor general, will argue the case is about "legislative policy" and who decides the definition of marriage. It also is a test of whether the U.S. Constitution supersedes states' constitutions and their amendments, he said.

"Legislative facts are not debatable," he said, so evidence in the March 2013 trial that overturned Michigan's gay marriage ban won't be an issue.

Bursch said the case is not about "the best way to define marriage," but about the state's constitution and voter desires.

Added Schuette: "I wouldn't call it state's rights. It's really a decision about who gets to decide. We have a constitution and additional amendments people voted on."

Bursch argued Michigan's affirmative action case, challenging the University of Michigan admissions policies, last year before the nine Supreme Court justices, along with Aaron Lindstrom, the state's solicitor general since 2013. The strategy for arguing both cases is similar, Bursch said: striking down the plaintiffs' assertion their constitutional rights were violated.

Attorneys for the defendants say the 14th Amendment is at the heart of the plaintiff's arguments, which say gays and lesbians are being denied constitutional rights that guarantee equal civil and legal rights for all.

Michigan's case will be argued by Mary Bonauto, the civil rights project director at the Gay & Lesbian Advocates & Defenders organization. The DeBoer v. Snyder case is the only marriage equality case that is seeking to have same-sex couples given the same rights to legally marry afforded heterosexuals.

Cases out of Ohio, Kentucky and Tennessee, which will be argued at the same time April 28, are marriage recognition cases in which the plaintiffs were married out of state and are challenging their home states' gay marriage bans, asking that their marriages be legally recognized in the state where they live.

The Supreme Court justices will consider two questions for the cases: Is a state obligated under the 14th Amendment to grant a marriage license between two people of the same sex? And is a state required to recognize a marriage between two people of the same sex when it was a marriage legally recognized and performed in another state?

But Bursch said Wednesday gay couples are not guaranteed the same legal rights as interracial couples, who won the right under the landmark Loving v. Virginia case, because the "the federal constitution is silent with respect to how to define marriage generally." He added it's up to voters to decide it.

Schuette predicts the state of Michigan will prevail. He added he expects the U.S. Supreme Court to deliver a clear ruling on the issue.

"I think the Supreme Court will be as specific as possible. Why? Because this has caused anxiety (for) good people on both sides," Schuette said.

Schuette said it's possible that the nation's highest court will not have the final word on the issue even after its ruling, which is expected by the end of June.

"There will be more cases about this depending on what the justices rule," Schuette said. "Look at Roe v. Wade," the historic case that legalized abortion.

"Whatever the outcome, we will be prepared," said Schuette, adding how much finality there is to the issue will depend on what the justices say in their decisions on the two questions before the High Court.

He also said the future for 323 same sex couples legally married in Michigan hangs in the balance because "we have to see what the court might say. No one wants the disruption in the lives of people. I don't want that."

Schuette added whatever decision the court makes he will "honor, respect and defend" it.

Gay marriage is legal in 37 states.

bwilliams@detroitnews.com

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