State of MI on Same-Sex Marriage: Insultingly Stupid

[please see edit at bottom]
There is an ongoing lawsuit in the state of Michigan right now to overturn our state's ban on same-sex marriage, Deboer v. Snyder.  A lot of hubbub has been raised in the media about a statement in this document filed by the State defendants, claiming:

"One of the paramount purposes of marriage in Michigan—and at least 37 other states that define marriage as a union between a man and a woman—is, and has always been, to regulate sexual relationships between men and women so that the unique procreative capacity of such relationships benefits rather than harms society. The understanding of marriage as a union of man and woman, uniquely involving the rearing of children born of their union, is age-old, universal, and enduring." [p. 15]

Quite a bit has been said already (HuffPo, MLive, ThinkProgress, Detroit News – no coverage from national mainstream media it seems, cursory searches aren't turning up articles), but what is rather strange is how not many people have caught on to a very basic detail about this statement, which comes before how contemptuous this is or how detached from the people's understanding of marriage is:

It's just fundamentally not true.

The argument is insultingly stupid.  There are zero consummation requirements for married couples in Michigan, there are zero requirements for married couples to have or raise kids, there are zero regulations on the types of sex that married couples may have (barring sexual misconduct of 1st through 4th degrees, which apply to all people – but hey actually there are provisions for married couples to not be covered by those laws, like here here and here!  I guess if regulation and lack of regulation can be considered the same thing...).  There is not even a requirement for married couples to undergo testing for diseases and infections, as exists in some other states, only that educational material on these be provided.  Of the laws in Michigan pertaining to marriage, none relate to sex.

So, the purpose of marriage in Michigan is to regulate sexual relationships?  There are no regulations of sexual relationships for married couples in Michigan.  And even if there were laws in Michigan regulating sexual relationships of married couples (which again, there aren't!), allowing same-sex couples to get married cannot possibly reduce the efficacy of said regulations.

In fact, if these fantastical regulations actually worked to effect their stated goal, you'd think that they'd want homosexual couples to marry, so that their children would grow up in more stable households!  Heck, you'd think they'd even take the advice of the people that they reference on p. 16 of their report, who all argue that a married parental structure is better for children than a simply cohabiting couple of parents, or a single parent.

You'd think, anyway.  But these aren't thinking people.

EDIT – correction

It's been pointed out to me by a more-astute-than-myself reader that in Michigan, adultery is still technically illegal, as is cohabiting by divorced parties (I think this means two people who divorce and then still live together, rather than two individuals from separate divorced marriages).  The law has been on the books since 1931, but it has not been enforced since 1971; it's my understanding that, like failure to consummate a marriage, adultery can and likely has been used in divorce filings, but apparently it's possible to be prosecuted for adultery, which it is a felonious offense.

Considering too how this type of sexual behavior probably will have drastic effects on a marriage, this is probably a paramount example of a regulation on sexual relationships of married people.  And yes, it has not been enforced for over 4 decades, but it's technically on the books and I suppose the state could decide to prosecute any time it chooses (backlash notwithstanding).

Shenanigans from the DOJ

Everyone right now should know that the Supreme Court recently heard oral arguments on the constitutionality of Section 3 in the Defense of Marriage Act (DOMA).

What most people probably know is that the Department of Justice (DOJ) has refused to defend the law in court, and that the Bipartisan Legal Advisory Group (BLAG), from the House of Representatives, has stepped in to defend the law.

What fewer people probably know is that after the District Court ruled that the law was unconstitutional, and that the executive government had to pay the tax refund (some $363,000) to the plaintiff, the DOJ decided to file as an aggrieved party to the Supreme Court.  In other words, the DOJ will not obey the stay order, and is filing as an appellant... for a decision they agree with.  As the lawyer for BLAG put so nicely:

"You will see the most anomalous motion to dismiss in the history of litigation: A motion to dismiss, filed by the United States, asking the court not to dismiss."

What everybody is dying to know: why the hell did the DOJ file at all?

There were several statements made in the oral arguments (transcript here) that try to shed light onto the DOJ's line of reasoning.  The first was part of an explanation proffered by Justice Alito:

"JUSTICE ALITO: Well, the Solicitor General's standing argument is very abstract. But here is one possible way of understanding it, perhaps the Solicitor General will disavow it, but it would go like this: The President's position in this case is that he is going to continue to enforce DOMA, engage in conduct that he believes is unconstitutional, until this Court tells him to stop. 

The judgment of the Second Circuit told the Executive Branch to comply with the Equal Protection Clause immediately. The President disagrees with the temporal aspect of that, so the Executive is aggrieved in the sense that the Executive is ordered to do something prior to the point when the Executive believes it should do that thing. 

Now, wouldn't that be sufficient to make -­ to create injury in the Executive and render the Executive an aggrieved party?"

The first thing we might notice from this statement is a confirmation that the DOJ will continue to enforce Section 3 of DOMA. Again, they agree with the decision to make them stop. So, why in the world has the executive branch decided to continue to enforce? Apparently it's because of 'respect' for the lawmakers that passed it:

MR. SRINIVASAN: Well, there are — there are a number of considerations that could factor into it, Justice Ginsburg. You're right that either of those scenarios is possible. The reason that the Government appealed in this case is because the President made the determination that this statute would continue to be enforced, and that was out of respect for the Congress that enacted the law and the President who signed it, and out of respect for the role of the judiciary in saying what the law is.

WHAT?!?  But no, this is true, we see the same thing from the summary of the DOJ's appeal from the Second Circuit Court of Appeals:

While the government concurs substantively with the district court’s conclusion that Section 3 is unconstitutional, the President has directed federal agencies to continue to enforce DOMA “unless and until . . . the judicial branch renders a definitive verdict against the law’s constitutionality.” Holder Letter at 5. As the Attorney General has explained, “this course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.” Ibid.

This seems a bit too stupid.  A bit too ridiculous of a reason why they will continue to enforce when they actually agree they should not be enforcing.  And apparently the DOJ thinks that it has the right to file based on an aggrieved status predicated by this order to follow the constitution when it "wishes" to do otherwise (enforce the law).

There is one possible ulterior motive.  The District Court ruled the law unconstitutional, but there are two ways to do that: "facially," an "as–applied."  The difference between the two is that if a law is unconstitutional facially, it is unconstitutional all of the time and thus struck down.  If it is unconstitutional as applied, then the decision only fixes the situation for the immediate plaintiff.

The District Court ruled the law unconstitutional as applied to the plaintiff, as stated in the decision.  This means that there was no federal imperative for enforcement of the law to cease.  BLAG would have, and of course did, appealed the decision to a higher court.

The implications of the scope of the lower court's decision really help to shed light on a particularly ominous possibility: BLAG's standing in the case was in question.  At higher court levels, their standing is less clear, and indeed even in the Supreme Court, there were arguments over their own standing to defend the law.  If BLAG had failed to demonstrate standing in either the Second Circuit or in the Supreme Court, this case would end without a ruling of facial unconstitutionality.

This is why the federal government is stepping in with this completely bullshit argument about wanting to enforce the law, out of respect of the passing Congress and signing President, until Congress passed a law to override DOMA or a court ruled it unconstitutional in all cases.  They may yet have a case of grievance from the requirement to pay the tax refund anyway (which they are actually quite happy to pay, since again they agree with the ruling).  This petition was filed before the case made it to the Second Circuit, and it is not quite clear from the Second Circuit's decision that the law was determined unconstitutional facially.  The court may very well have decided as if to uphold the determination made at the District Court level.

If BLAG's standing is rejected in the Supreme Court, this decision of as–applied unconstitutionality will very likely stand, and DOMA will remain.  It will remain until Congress passes a law overriding it, or until a federal court rules it unconstitutional facially.  But, if the DOJ can maintain standing, then there will be a defendant in the case still, and the Supreme Court can rule on the merits of DOMA and very likely rule it unconstitutional facially.

So yes, this is complete shenanigans from the DOJ, to find a loophole to actually end this law outright.  But it just might be ridiculous enough to work.

Anti-Discrimination Policy: Update

In a post about a month ago I explained the situation regarding the registered status of a religious student organization on campus, the Asian InterVarsity Christian Fellowship (AIVCF).  The group had written into its student organization constitution a requirement that officers in their organization submit a statement of faith, effectively excluding a number of people from being able to lead their student organization (but which would also give them the ability to guarantee that their group functions toward their stated goals).  The University saw such a requirement as a breach of the Anti-Discrimination Policy, particularly (again, I think, though don't know the specifics) this section:

"The University is committed to compliance with all applicable laws regarding non-discrimination.  Furthermore, it shall strive to build a diverse community in which opportunity is equal for all persons regardless of race, sex, color, religion, creed, national origin or ancestry, age, marital status, handicap, or Vietnam-era veteran status.  It shall exert its leadership for the achievement of this goal by all parties which it recognizes or with which students or employees of the University are involved."

Quite belatedly I have now revisited their Facebook page to see if there has been an update on the issue; the University and AIVCF had met on February 4th to discuss the matter, and according to AIVCF a ruling has been put forth (my emphasis):

Coming out of those meetings, the University ultimately decided to make an exception to their policy and offer us fully restored student organization status.

Ah, 'exception.'  That's a fun word to hear from groups whose national leaders were earlier throwing around cries of discrimination.  This will surely leave a bitter taste in the mouths of at least several of our own members, who also recognize the malarkey around such accusations.

Anti-Discrimination Policy

EDIT - please see discussion at the end of the article over the phrasing of student organizations as "registered" or "recognized."  Article has been edited to adjust all to "registered;" again, read on why.

The University of Michigan's Center for Campus Involvement (CCI) has recently refused to re-recognize re-register a student group on campus, the InterVarsity Christian Fellowship (ICF), because of a provision in the group's constitution that required student officers to sign a statement of faith.  The Center claims that the policy is not in line with the Anti-Discrimination Policy that the University put in place in 1980, I think specifically the general policy statement in the EEO/Affirmative Action Policy that dates from at least 1980 (my emphasis):

"The University is committed to compliance with all applicable laws regarding non-discrimination.  Furthermore, it shall strive to build a diverse community in which opportunity is equal for all persons regardless of race, sex, color, religion, creed, national origin or ancestry, age, marital status, handicap, or Vietnam-era veteran status.  It shall exert its leadership for the achievement of this goal by all parties which it recognizes or with which students or employees of the University are involved."

What this essentially means is that the University is no longer offering services to ICF that come with being a registered and recognized student organization – free room rentals from the Student Organization Accounting Services, advertising space, floor space for fundraisers or event promotions, office equipment, and so on.  As the University owns and operates these spaces and services, they have a right to withhold or otherwise condition use of these resources.

De facto this means that if ICF wants to meet, they will not be able to find a space on campus to do so.  This is how they have been "forced" off of campus; the group's operations will be hurt to the extent that these lost privileges can't be made up for with extra funding or donated services and space.  But, the University has not taken from the group what it hasn't granted every year when ICF was able to successfully register.