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Attorney General Schuette and States' Rights: Is He Shooting from the Hyp?

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Congratulations to the DeBoer and Rowse family, and their legal team, Dana Nessel, Carol Stanyar and Ken Mogill. This is truly a historic moment for our great state. I wanted to wait a few days and let the well-deserved, hard fought and heroic victory finish percolating before I had a chance to mention a few important observations.

It should be noted that before I had a chance to publish this post, I had to withdraw my submission in order to include this significant update. The happiness and excitement of the historic win was short-lived, however. Within 10 minutes of Judge Friedman's opinion and order, Attorney General Bill Schuette filed to stay the ruling, citing his oath to defend "the will of the people."

The stay has been granted by the 6th Circuit Court of Appeals indefinitely, and the case will have to make its way through the appellate court and may be joined by other states and eventually be heard before the U.S. Supreme Court. For the time being, Governor Snyder stated he will not recognize the 300 same-sex marriages that took place over the weekend.

It is clear that Bill Schuette has built his image around fighting for our state and its people. He is a very vocal advocate of states' rights. Schuette said that "[i]n 2004, the citizens of Michigan recognized that diversity in parenting is best for kids and families because moms and dads are not interchangeable," that "Michigan voters enshrined that decision in our state constitution, and their will should stand and be respected."

This comes as no surprise to those who have followed the attorney general's career. After the Supreme Court struck down the Defense of Marriage Act, Schuette was quick to release a position statement.

The U.S. Supreme Court ruled that states, not the federal government, retain the constitutional authority to define marriage. Michigan's Constitution stands and the will of the people to define marriage as between one man and one woman endures in the Great Lakes State.

What may not be obvious to those on the sidelines, as it has not often made headline news, is that the ruling by Federal Judge Bernard Friedman overturned a voter initiative wherein 2.7 million people voted in favor of in 2004. The legal rationale used by Judge Friedman was that the 2004 law banning "gay marriage" was a violation of due process and violated the plaintiff's equal protection rights under the 14th Amendment.

Portions of Judge Friedman's decision directly address the defendants, the State of Michigan and Attorney General Bill Schuette's arguments.

State defendants lost sight of what this case is truly about: people. No court record of this proceeding could ever fully convey the personal sacrifice of these two plaintiffs who seek to ensure that the state may no longer impair the rights of their children and the thousands of others now being raised by same-sex couples.

It is this component of this case that I find most interesting, and worthy of pointing out.

The Attorney General's main argument was that in 2004, the will of the voters enacted the ban on same-sex marriage. He argues that it is his duty and obligation to ensure that the state's enacted law are not superseded by Federal Law. Schuette argued that the will of Michigan voters "should stand and be respected," and has vowed to continue to fight to uphold the Michigan Marriage Amendment Act, approved by 2.7 million voters in 2004, when they decided marriage can only be defined as a union between a man and a woman.

During the trial, state attorneys claimed it would be a mistake to overturn the will of the people. Michigan Assistant Attorney General Kristin Heyse said it wasn't a "whim of the few." Indeed, there were 2.7 million individuals that submitted their ballots, and the ban was approved by 59 percent of the voters.

This is not the first time our attorney general has raised the flag of "states' rights," when supporting or condemning a particular issue.

In January 2011, Schuette dragged Michigan into a lawsuit supporting the State of Arizona's right to enact immigration law, despite a long history in federal jurisprudence as a field occupied exclusively by the federal government. The law was later overturned and the lawsuit dismissed.

On July 1, 2011, the Michigan Court of Appeals struck down Proposal 2, a ballot initiative aiming to ban considerations of race and gender in college admissions and government hiring. The judges claimed it would put an unconstitutional burden on minorities. Schuette immediately announced that he would file an appeal, claiming that "[w]e will stand up and protect the rights of all citizens of Michigan to be treated fairly." (RELATED: State Attorney General Schuette to Appeal Ruling Striking Down Affirmative Action Ban)

In 2012, Schuette once again perched atop the 10th Amendment and proclaimed that the federal government's affordable health care act cannot force the state to mandate health insurance. He joined other leaders from his national party in a lawsuit against the federal government. The suit was later thrown out, and the cost of litigation was never recouped.

Our state's sovereign power flows from the 10th Amendment of the Constitution, which declares:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The 10th Amendment has been interpreted to mean, essentially, that the federal government is limited to only those powers enumerated in the constitution -- each state is a separate sovereign, and final issues are usually settled at the state supreme court.

So why is any of this interesting? Because every time the Attorney General has had an opportunity to speak about the Michigan Medical Marijuana Act, a voter initiative, wherein over 63 percent of Michigan Voters approved, he has declared that it violates federal law.

When an October 2013 gallup poll showed that 58 percent of Americans supported legalization, Schuette took an aggressive stand. The attorney general said that federal law takes precedence, and as such, any city-passed marijuana legalization/decriminalization initiative would be ignored and that he would enforce the appropriate federal law. (RELATED: Schuette Ignores Decrim In Ferndale, Jackson And Lansing)

In 2013, Schuette authored an opinion claiming that returning medical marijuana seized by police agencies violated federal law. Section 4(h) of the Medical Marijuana Act requires a law enforcement officer to return marijuana to a registered patient or primary caregiver upon release from custody. AG Opinion #7262 claims that this section is preempted by the Controlled Substances Act.

In 2009, he stood on the side of federal law, refusing to defend the MMMA's patient privacy protection, when the federal government issued subpoenas for names of patients and caregivers registered with the Michigan Medical Marijuana State Private Registry Program. Ignoring the law, and not even filing an objection to the request, he complied with the Subpoena and disseminated both patients and caregivers information to the federal government.

Without regard for the privacy protections clearly outlined in the state law, not once did he argue the 10th Amendment. Not one time did his obligation to the citizens of Michigan to enforce the protections of the act form into an argument when he stood before the Court. As to his defense of the MMMA, the patients and caregivers and the overwhelming number of Michigan voters in support -- the silence has been deafening.

Every time he has had a chance to speak of the voter's decision to approve medical marijuana, he has had nothing positive to say whatsoever. In fact, you would find identical arguments comparing those made by Ms. Rowse and Ms. DeBoer in the marriage equality case to those consistently made by Bill Schuette about medical marijuana in Michigan.

The plaintiffs argued that the gay marriage ban of 2004 tricked or duped the voters. Bill Schuette has argued this same point since the election of 2008. In doing so, not once has he ever maintained the right of the state to implement the voters' will. Not once has he supported the desires of Michigan citizens to allow persons to choose cannabis as a legitimate option to treat their serious medical condition.

At some point someone has to point out the irrational and inconsistent position taken by our attorney general on such an important states' right. So when you hear our leading law enforcement officer proclaim the MMMA has more holes than Swiss cheese, remember the Michigan Medical Marijuana Act, a voter initiative, received more votes by Michigan citizens than any other law, initiative or candidate in the history of elections in the State of Michigan.

On banning same-sex marriage, Schuette's reasoning is the 10th Amendment, individual states' rights and the defending "the will of the people." As we know, when it comes to the MMMA, the attorney general changes his tune. Federal law prevails as Schuette's argument against the MMMA, while defending "the will of the people" and states' rights lose their sense of urgent importance.

Remember, our attorney general is insulting every single Michigan voter who depended upon him to, at the very least, follow his party line and defend states' rights. Instead, his position has been a true setback to all those who oppose an overbearing federal government. His obstruction to the voters' will and should not go unnoticed. Maybe after the smoke clears we can get an honest answer from our attorney general about his position on states' rights.

Today, it's important to celebrate the Rowse and DeBoer family's victory. Their victory is our own, and one for our entire state. Judge Friedman issued a groundbreaking ruling for our proud state. It puts us all on the right side of history. It allows us to tell our grandchildren that we remember the day when this important step in what should and will be known as basic human rights came to pass.

Unfortunately, there are those who mean to reverse this decision. An indefinite stay is in place. But despair is not the answer. As with any important legal, social or cultural shift, especially one of this magnitude, change will not come without a fight.