Michigan Attorney General’s Office’s Contradiction on Same-Sex Marriage

April DeBoer and Jayne Rowse want to get married and adopt each other’s children, but the state of Michigan has laws against both of those actions, so they have sued the state in federal district court. The State of Michigan, under the auspices of Attorney General Bill Schuette, argues in its court documents that “Michigan supports natural procreation and recognizes that children benefit from being raised by parents of each sex who can then serve as role models of the sexes both individually and together in matrimony.”

DeBoer and Rowse are raising three children who could not be raised by their birth parents. Each has legally adopted one or two of these children, but the state does not allow unmarried partners to adopt each other’s children. Straight couples can, of course, circumvent that restriction by marrying, but gay couples are not allowed to marry. Sounds like an equal protection issue to me.

Before we get to Schuette’s contradiction, let’s clarify the state’s position on “natural procreation” and the “benefit from being raised by parents of each sex.”

  1. The state has no law against “unnatural” procreation via in vitro fertilization;
  2. Nor does the state have a law restricting single-parenthood;
  3. Nor does it have a law restricting single-parenthood via in vitro fertilization;
  4. Nor a law restricting a gay person from having a child through in vitro;
  5. Nor a law restricting either a gay or straight person from adopting a child begotten through in vitro by another person;
  6. Nor, even, a law restricting a gay or straight person who has adopted from raising that child with a same-sex partner.

The only restriction the state’s interest in “natural procreation” and “benefit from being raised by parents of each sex” leads to is to prevent unmarried partners from adopting each other’s children. If the state’s going to apply its interests so selectively, perhaps it’s not that strong an interest?

But here’s the kicker. After approving a legal argument with that language, a spokesperson in the Attorney General’s office publicly said that Deboer and Rowse “doing a wonderful job raising their children,” but the issue is whether law should be determined by the people or the court.

No, that is not the issue. The people do not have unlimited authority to determine the law, because they are constrained by the constitutional requirement that they not deny portions of the people equal protection. But more to the heart of the matter, if DeBoer and Rowse are “doing a wonderful job raising their children,” why does not the state’s interest in the well-being of children extend to supporting them? Has the AG’s office not effectively admitted that in fact same-sex couples are equal to straight couples in their ability to raise children, but that they still intend to deny them the same support they give to straight couples?

Here’s what’s really at stake for the kids. If either DeBoer or Rowse were to die, there is no guarantee the other would be able to keep the child/children they’d been raising. These kids, who see each other as siblings and DeBoer and Rowse as parents, could be taken from their home, their siblings and their remaining parent. That’s how the state expresses its interest in the well-being of children.

It’s been about 4 years since I wrote a post at Positive Liberty titled “No Good Arguments Against Same-Sex Marriage.” I argued that I’d been reading diligently on the issue and had had a lot of students write papers on it, and yet I had not seen any actual good arguments against it. I got some pushback from some of the more conservative readers, but they could not provide logically sustainable arguments, either. In the several years since then, which include the Prop 8 trial and SSM opponent’s presumably best effort at arguing against it, I still have not seen any good arguments against it. And the Michigan Attorney General’s office certainly hasn’t changed that.

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About J@m3z Aitch

J@m3z Aitch is a two-bit college professor who'd rather be canoeing.
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4 Responses to Michigan Attorney General’s Office’s Contradiction on Same-Sex Marriage

  1. Matty says:

    It seems to me that best, or maybe only good argument *was* Burkean – that we didn’t know what effect same sex marriage would have so needed to be cautious. Now having been cautious and allowed it to be tried in some jurisdictions but not in others the results are in and they show no negative effects. Anyone who took conservative thinking seriously should now be admitting that this is one of those changes that doesn’t cause a radical alteration to society and they have no case left.

  2. I notice you don’t include Michigan’s totally consistent prohibition of marriage involving post-menopausal or otherwise sterile individuals, nor its requirement that all marriages yield progeny in a reasonable time or be subject to annulment.

  3. pierrecorneille says:

    I do think there are “good” arguments for outlawing ssm, but in order to make those, one has to endorse certain assumptions about the state’s authority to enforce certain moral norms regardless of the equal protection consequences. In my (limited) experience, very few ssm opponents actually endorse, or admit to endorsing, such assumptions. (I’ve known a few “rah rah” social conservatives who might in an honest moment admit to endorse such assumptions, but even with them, they don’t do so consistently.)

  4. J@m3z Aitch says:

    @Matty,
    It seems to me that best, or maybe only good argument *was* Burkean
    I agree.

    @Pierre,
    I do think there are “good” arguments for outlawing ssm, but in order to make those, one has to endorse certain assumptions about the state’s authority to enforce certain moral norms
    Of course you know what I think about such assumptions. ;)

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