Michigan Marriage Ban Co-Author Goes 'Moral'

Glenn Claims Federal Judge Lacks 'Authority' To Overturn Ban

By Todd Heywood

Gary Glenn, head of the American Family Association of Michigan and a Republican candidate for the 98th House District, issued a press statement on Friday claiming Federal District Court Judge Bernard Friedman did not have the "Constitutional or moral authority" to overturn the state's marriage ban.

"One Detroit lawyer in a black robe doesn't have legitimate constitutional or moral authority to overturn either natural law or the vote of 2.7 million Michigan voters who placed the Marriage Protection Amendment in our state constitution," Glenn wrote. "This one political elitist put his own personal views above the will of the people, arrogantly ruling that all 2.7 million voters were 'irrational' in their common sense belief that the ideal environment for every child is having both a mother and a father committed to each other and to their children in marriage. We support Attorney General Bill Schuette in his appeal to overturn this illegitimate decision that has at least temporarily stripped Michigan citizens of the full measure and impact of their voting rights."

Glenn touts being a co-author of the amendment on his campaign website.

Glenn was not alone in claiming the 'will of the voters' had been ignored. A press release from "100 black pastors" claims the same thing, under the headline "Martin Luther King, Jr. died in vain."

In the trial held in Detroit earlier this month, Attorney General Bill Schuette's team hammered the issue of voting rights over and over again. Friedman, who was appointed to the federal bench by Ronald Reagan, took pains to address that argument in his 31-page ruling.

"Further, the Court rejects the contention that Michigan's traditional definition of marriage possesses a heightened air of legitimacy because it was approved by voter referendum. The popular origin of the MMA does nothing to insulate the provision from constitutional scrutiny. As Justice Robert H. Jackson once wrote,

'[t]he very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.'

West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 638 (1943); see e.g. Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2 (1975) (stating that the right to equal protection is incorporated within the Fifth Amendment's Due Process Clause). The Court is not aware of any legal authority that entitles a ballot-approved measure to special deference in the event it raises a constitutional question. On the contrary, 'the Supreme Court has clearly stated that if ... an enactment violates the U.S. Constitution - whether passed by the people or their representatives - judicial review is necessary to preserve the rule of law ... [t]he electorate cannot order a violation of the Due Process or Equal Protection Clauses by referendum or otherwise, just as the state may not avoid their application by deferring to the wishes or objections of its citizens.'

Obergefell v. Wymyslo, No. 13-0501, 2013 U.S. Dist. LEXIS 179550, at *27-28 (S.D. Ohio Dec. 23, 2013) (citing Cleburne, 473 U.S. at 448). In view of the foregoing, the state's domestic relations authority cannot trump federal constitutional limitations."


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