People can certainly disagree with Judge Friedmans conclusion and ultimate ruling in this case, but I keep seeing the argument raised that this was judicial activism and that Friedman should not have overruled the will of the people. Quite frankly, I question whether those who make that argument have actually read Judge Friedmans opinion. The will of the people of a state has absolutely no place in a discussion about whether a provision (whether statutory or part of a state constitution) is constitutional under the Equal Protection Clause. The only issue is whether there was a rational basis for the discrimination that the Michigan Marriage Amendment put in place. Had Judge Friedman used an intermediate scrutiny test, I could at least see the potential for a charge of activism; however, Friedman simply analyzed the MMA under the rational basis test. People can disagree with the weight he gave to witness testimony and the evidence, as well as his ultimate conclusion, but the logic in his ruling was sound. It is unfair to characterize this as judicial activism (or him as a judicial activist), and the will of the people argument has no place in that discussion. Where it does potentially have a place, and where I disagree most with Judge Friedman, is in the fact that he did not stay his decision. He knew (or should have known) that his ruling would be appealed, and there is a decent possibility that his ruling will be overturned. That, combined with the fact that fluidity in marriage law is not good for the legal system or society and the high profile nature of the case, leads me to believe that a stay should have been (and still should be) issued. For those who have not yet read the opinion, I would encourage you to do so here (its a quick read... 31 pages double spaced): mied.uscourts.gov/cases/DeBoervSnyder/orders/4.Deboer_Findings_of_Fact_and_Conclusions_of_Law.pdf
Posted on: Sat, 22 Mar 2014 19:46:15 +0000
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