Nick Krieger (@nckrieger):
Whether you’re for gay marriage, against gay marriage, or ambivalent, you have to admit that Michigan Attorney General Bill Schuette just might have a problem with it. And by problem, I don’t simply mean that he opposes the practice. I mean that his steadfast, ideological opposition to same-sex marriage could end up causing problems for his political future down the road.
In February, retired Judge William C. Whitbeck wrote in the Detroit News that Schuette, as Attorney General, is obligated to defend Michigan’s constitutional ban on same-sex marriage because he took an oath “to support the entire constitution.” But contrary to the premise of Judge Whitbeck’s column, Schuette has made a cottage industry of picking and choosing the constitutional provisions that he wants to defend. The Michigan Constitution of 1963, as amended, consists of 12 articles and 263 separate sections. As is so often stated in Michigan law, each of these sections “enjoy[s] equal dignity.” In re Proposals D & H, 417 Mich 409, 421; 339 NW2d 848 (1983). This, however, has not stopped Schuette from ignoring several different constitutional provisions over the years.
For example, in supporting an overtly partisan statute that uniquely allows the Oakland County Board of Commissioners to redraw its own districts, Schuette’s office actively argued that the law was not a “local or special act” within the meaning of article 4, § 29, even though the Court of Appeals had already held that it was. In defending the politically orchestrated transfer of the Court of Claims from the Ingham Circuit Court to the Court of Appeals, Schuette failed to mention article 6, § 1, which provides that the Legislature may only create special courts of limited jurisdiction “by a two-thirds vote of the members elected to and serving in each house.” And in railing against medical marijuana in all its forms, Schuette repeatedly disavows the fundamental power of the People of Michigan to propose and enact laws through the initiative process of article 2, § 9.
It is true that article 1, § 25 of the Michigan Constitution bans same-sex marriage. But Schuette has been wholly inconsistent (to put it nicely) in his defense of Michigan’s chartering document. Whatever you think of gay marriage, it is important to remember that Schuette has a sacred obligation to defend the other 262 sections of the Michigan Constitution as well.
Now Schuette has made an even larger blunder by spending state tax dollars to retain outside counsel in DeBoer v Snyder, the Michigan same-sex marriage case. Schuette, who briefly worked for the Grand Rapids law firm of Warner, Norcross & Judd, LLP (WNJ) before his election as Attorney General, has contracted to pay WNJ attorney John Bursch as much as $50,000 to argue DeBoer in the United States Supreme Court. I acknowledge that Bursch formerly worked for the Attorney General’s office and has previously argued before the Supreme Court. But the Michigan Attorney General’s office employs full-time, salaried, in-house attorneys known as the Solicitor General and Deputy Solicitor General (and their staff) for the very purpose of representing the State of Michigan before the Supreme Court. In fact, any number of appellate attorneys in Schuette’s office would be qualified to argue the case, all without costing the state’s taxpayers a single additional dollar.
If DeBoer is truly an assault on the will of the People of Michigan as Schuette alleges, and the issues raised in the case are really as momentous as he claims, shouldn’t Schuette follow the past example of other state attorneys general and argue the case himself? He won’t, of course. Instead, Schuette has paid an outside attorney to litigate a case that he or one of his employees should be arguing at no added cost. His behavior in this regard amounts to nothing more than a political favor for a connected former employee and a colossal waste of our money.
Schuette vociferously champions those provisions of the Michigan Constitution that suit his personal tastes and preferences, sparing no expense (however unnecessary) to defend them in court. But at the same time, he willfully disregards those provisions of our state constitution that get in his way. As noted earlier, all constitutional provisions—even the inconvenient ones—are entitled to equal dignity. For Schuette, however, it is all too easy to set aside an oath of office for the sake of political expediency.
When Schuette says that he is merely enforcing the same-sex marriage ban as he would enforce any other provision of the Michigan Constitution, don't believe him. It is one thing to be a consistent conservative. It is quite another to pick and choose which laws to enforce according to one’s personal whims. Schuette is treading on thin ice and the People of Michigan are beginning to take notice.