Wrong side of history

By Mickey Hirten

Jim Crow reasoning, politics guide Schuette in same-sex marriage case

History won’t look kindly on people like Michigan Attorney General Bill Schuette who fight so passionately to withhold from our friends and neighbors their rightful, fundamental civil rights.

Years removed, but within our lifetimes, we look at Southern governors like Arkansas’ Orval Faubus and like-minded attorneys general fighting the integration of schools and lunch counters or the baseball establishment banning black players before Jackie Robinson and wonder how could they be so bigoted? The same for those opposing rights of people with disabilities or the equality of men and women in the workplace.

Schuette, of course, has marshaled his formidable legal resources in a landmark trial to defend the state’s discriminatory constitutional amendment banning same-sex marriage. He frames his denials with the same language, the same legalistic reasoning, the defenders of southern Jim Crow laws used to justify the odious Black Codes.

“In this lawsuit, State Defendants seek to uphold the laws of this State and the will of its people,” Schuette’s brief proclaims in its introduction. As if these mandates somehow justify discrimination. Consider how in our country, state laws, supported by the will of the people, regulated marriage and children.

First, from Georgia:

“It shall be unlawful for a white person to marry anyone except a white person. Any marriage in violation of this section shall be void.”

From South Carolina:

“It shall be unlawful for any parent, relative, or other white person in this State, having the control or custody of any white child, by right or guardianship, natural or acquired, or otherwise, to dispose of, give or surrender such white child permanently into the custody, control, maintenance, or support of a Negro.”

And from Florida:

“Cohabitation: Any Negro man and white women, or any white man and Negro woman, who are not married to each other, who shall habitually live in and occupy in the nighttime the same room shall each be punished by imprisonment not exceeding twelve (12) months, or by fine not exceeding five hundred ($500.00) dollars.”

What rational person today sees these laws, compiled by St. Joseph’s University in Philadelphia, as anything but racist and those who defended them as enablers?

In February, Schuette took his fight against same-sex marriage to U.S. District Court to defend a case brought by April DeBoer and Jayne Rowse, who sought to adopt three children born with special needs. The couple sued in 2012 to overturn the Michigan law that prevents unmarried couples from co-adopting children and later, with the court’s encouragement, expanded their suit to challenge the state’s same-sex marriage ban.

Schuette’s arguments against same sex marriage emphasize two key points: that a prohibition does not violate constitutional rights and that “Responsible procreation and childrearing are well recognized as legitimate State interest served by marriage” — but not same sex marriage.

Neither argument holds.

Federal courts in state after state have ruled that same-sex marriage bans violate the equal protection clause of the U.S. Constitution, an issue bound for the Supreme Court, which has already invalidated the federal Defense of Marriage Act.

The assertion that children raised by same-sex parents in some measure suffer when compared to children from traditional families is widely disputed by most sociologists and their professional organizations. It forced the state to solicit fringe witnesses in the DeBoer/Rowse trial, with embarrassing consequences. The theories of the state’s main witness, Mark Regnerus, were vigorously disavowed by his own academic department at the University of Texas at Austin. Another state witness, Sherif Girgis, a doctoral student and promoter of traditional marriage, was dismissed an unqualified expert witness by trial Judge Bernard A. Friedman.

Schuette declined a request for an interview to expand on his views. It’s a tough position to defend. The contention that the state’s traditional marriage requirements actually protect children is riddled with contradictions that illustrate the core bias of Michigan’s same-sex marriage laws. The state has no marriage test for income or education, both of which affect the stability and welfare of families. Why not, if it affects child welfare? It allows gay partners to serve as foster parents. And it allows couples to divorce, which studies show can have a devastating affect on children.

What does the state want? This is how Schuette frames its goals.

“Through marriage, societies seek to increase the likelihood that children will be born and raised in stable and enduring family units by both the mother and fathers who conceived them. That is what is meant by the phrase ‘responsible procreation and childrearing.’”

If Schuette really wanted to ensure child welfare, he’d promote policies restricting divorces. But that’s bad politics, and politics is what opposition to same-sex marriage is all about, at least for conservative politicians. The defense of the state law and will of the people is window dressing. Clearly all laws aren’t created equal. Weigh Schuette’s fervor to fight against sex marriage with his tepid and restrictive response to the people’s demand for medical marijuana. The will of the people is graded on a sliding scale.

Both will be legacy issues as society’s attitudes change. The acceptance of same-sex marriage is happening far more quickly than past civil right issues. And for younger people — Millennials, those age 18 to 33 — it’s barely an issue.

But if you are plotting to succeed Rick Snyder as Michigan’s governor, legacy is a long-term expense. Short term, it’s better to pander to the conservative forces that shape the political landscape, voters who believe they lose when others — same-sex couples — gain.