Essay: Repellent Ruling - 5/8/2008

Since the 1960s, conservatives have been whining about liberal judges who they say, “legislate from the bench.“ That is to say, judges who make up new laws on their own, and then pretend what they want is somehow implied in or required by the constitution.

My liberal friends won’t like what I am about to say, but that is  in some cases an intellectually valid argument. I am totally in favor of what is called a woman’s right to choose. 

But I think it is really a stretch to find that the Constitution requires the complex trimester ruling of Roe vs.  Wade.

However, if any of the so-called strict constitutionalists support what the Michigan Supreme Court did yesterday, they are utter hypocrites. Yesterday, in a completely partisan ruling, our elected high court ruled that no unit of government could provide health benefits to same-sex couples.

Regardless of how you feel about that, here’s the complete text of the Michigan Constitutional Amendment their ruling was based on, an amendment passed in 2004.

To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.

Not exactly a literary masterpiece, but its meaning is clear enough; it says marriage can involve only a man and a woman.

But it says nothing whatsoever about health care.

As I understand the logic of it, what the court did yesterday was imply that units of government, including state universities, cannot extend any health care benefits to anyone who is not married to one of their employees.

Logically, then, my seven-year-old goddaughter should lose her  health care. Her father works for the State of Michigan, and he is only her father, not her husband. You would say that is absurd.

And you would be right. But so is denying domestic partner benefits based on this amendment.  Sometimes judges who are struggling to interpret the Constitution go back and read ancient documents and letters to try and discern what may have been the founding fathers’ original intent in framing some passage.

Well, in this case we only have to go back four years. Those campaigning for this amendment told audiences, over and over again, that all it was meant to do was ban gay marriage, that it wouldn’t touch anyone’s benefits.

They may have been lying, but that is what they said.

The root of the problem is that a flaw in our state constitution has given us a Supreme Court that is largely a collection of partisan hacks. They issued a ruling on our presidential primary earlier this year that was so blatantly unconstitutional a federal judge threw it out as soon as it landed on her desk. But unless we change the system or elect better judges, we can expect more of the same.

So, dear voters, I guess that leaves it up to you.

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Comments

[Anonymous]

Several things are noteworthy about this entry in Jack Lessenberry's Michgian Radio blog.

First, asking an ACLU attorney for an interview on this contentionus case is fine, for one particular perspective. That is to say, interviewing Jim Tressell on an upcoming Michigan-Ohio State football game would be interesting, for one particular perspective. Informative, but hardly unbiased. We'll of course be awaiting Jack's extension of equal time for an opposing viewpoint. Like he always does. Not.

Second, the Supreme Court Justices split 5 to 2 in support of this decision. The majority included iconoclast Justice Betty Weaver. Justice Weaver used to get sympathetic treatment from Mr. Lessenberry. As long as she was fighting the Republican majority. Now, I guess, she's just a "Republican" to Mr. Lessenberry. In Mr. Lessenberry's worldview, I sense that "Republicans" rate just above "incurable lepers" and just below "curable lepers."

Third, let's also remember that that a lower court, a three-judge panel of the Michigan Court of Appeals ruled the same way on this case. The recent Michigan Supreme Court decision upheld the lower appellate court ruling.

Fourth, if only in the interest of fairness and decent reporting, you'd have thought that someone at Michigan Radio might have thought to supply a link to the actual text of the court's opinion, so that intelligent readers could look at it and decide for themsleves. Perhaps, Mr. Lessneberr doesn't know what a hyperlink is. Here is the url for the webpage containing the decision:

http://courtofappeals.mijud.net/documents/OPINIONS/FINAL/SCT/20080507_S133429_164_natlpride3Nov07-op.pdf

[anonymous]

It appears you do not know what a hyperlink is either, because yours never work.

Further, I am weary of the argument that each side of an issue must be presented with equal time. If there are clearly more facts supporting one argument, it would be irresponsible to present them as equally true. Perhaps this commentor has been watching a lot of Fox News, or maybe he still has the analytic ability of a junior high student whose teachers made him write paragraphs that are all the same length.

Speculations aside, I will take truth over balance any day.

[Anonymous]

It is not possible, so far as I know, to embed hyperlinks in the text of these Comments.

So, whether it comes in the form of a "hyperlink" or not, my complaint -- and my challenge to Jack Lessenberry -- is for this blog to present some semblance of balance, something other than standard progressive/NPR groupthink. Moreover, the web is an ideal medium to supply links to other original source material, as I suggested above.

So, "little a" anonymous, because of the technical set-up of Mr. Lessenberry's blog, you have to cut-and-paste the url's that I give you into your browser. But you can thank me for giving them to at all, when Mr. Lessenberry didn't. My hyperlinks "never work" because they aren't hyperlinks. You can ask Mr. Lessenberry why it is that Michigan Radio's Commenters can't offer hyperlinks.

[Thrasher]

This ruling is flawed on a number of constitutional fronts including the breach of our goverment's obligation to promote the general welfare (for the strict constructionist refer to the preamble language in the US Const..also the 5th Amendment protects all americans including same sex americans from the loss of life ,liberty or property without due process of law..the banning of heath benefits by a state agency without appeal or redress is against our federal rights as affirmed in our US Const...

[Eric]

Well, considering that this all stems from another one of Cox's "opinions" I think it is safe to assume that at some point in the next few months this will be overturned.

Does anyone remember the driver's license disaster that Cox caused? If the majority in the supreme court is guilty of anything, it is guilty of trusting an opinion of the state's attorney general.