Mich. Cites SCOTUS Affirmative Action Ruling in Gay Marriage Appeal - U.S. Supreme Court
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Mich. Cites SCOTUS Affirmative Action Ruling in Gay Marriage Appeal

This is almost genius. Almost.

To date, arguments in favor of state bans on gay marriage have fallen flat in every court that has considered the matter. And with dozens of pending cases nationwide, we though we'd heard every conceivable argument.

And then Schuette happened (both the Affirmative Action case and the Michigan Attorney General).

Michigan: Respect Democracy!

For those who missed the last Schuette case, Schuette v. BAMN, the Supreme Court upheld Michigan's ban on racial preferences in admissions in the name of democracy. Justice Kennedy stated:

"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 [...] Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people. These First Amendment dynamics would be disserved if this Court were to say that the question here at issue is beyond the capacity of the voters to debate and then to determine."

In short: Respect the populace. Michigan Attorney General Bill Schuette, according to a report on MLive.com, echoed the sentiment in his argument to the appeals court.

"The district court's decision, to use (U.S. Supreme Court Justice Anthony) Kennedy's recent words, demeans democracy," he argued. "It denies each of those voters the dignity of a meaningful vote, labels each with the stigma of irrationality, and treats Michigan's electorate as incapable of deciding this profound and sensitive issue."

A Glaring Difference

While both voter-passed referendums share their pure democratic origins, there is one very glaring difference that Michigan Attorney General Bill Schuette glossed over: Michigan's ban is explicitly discriminatory.

The ban on affirmative action, at least on its face, appeared to be neutral. To paraphrase the common conservative take, there's nothing discriminatory about mandating equal treatment.

Conversely, the Michigan ban singles out one group (heterosexual couples) for preferential treatment over a second group (homosexual couples). Respecting the voice of the people is all well and good, at least until the majority explicitly discriminates.

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