Nessel: Same-sex marriage will likely fall and create ‘havoc’ after Roe does

AG says Enbridge’s legal gambit is ‘sanctionable,’ blasts Planned Parenthood lawsuit

By: - June 5, 2022 4:36 am

Attorney General Dana Nessel at the Mackinac Policy Conference, June 1, 2022 | Allison R. Donahue

Before she became Michigan’s chief law enforcement officer, Attorney General Dana Nessel was a private attorney who argued a marriage equality case that ultimately became part of the landmark Obergefell v. Hodges U.S. Supreme Court decision.

That protection for same-sex marriage nationwide is now in “dire jeapardy,” along with Lawrence v. Texas and possibly other landmark cases along those lines, Nessel told the Michigan Advance Wednesday. She made the same prediction three years earlier when the Advance asked her about the future of same-sex marriage, also noting that the right to birth control in Griswold v. Connecticut could be overturned by a right-wing Supreme Court.

In an interview with the Democratic AG at the Mackinac Island Policy Conference, the Advance asked about how Michiganders could protect the right to same-sex marriage, her relationship with Planned Parenthood of Michigan as the group wages a lawsuit against her, the state of the Line 5 lawsuit Enbridge is seeking to remove to federal court and more.

Nessel: SCOTUS could overturn same-sex marriage, birth control decisions

“I thought it was ridiculous that they were suing me to stop me from enforcing a law that I had pledged never to enforce,” Nessel said of Planned Parenthood. “I didn’t like the fact that I felt as though I was being cornered into defending a law that I felt was indefensible.”

Deb LaBelle, co-counsel for Planned Parenthood of Michigan, said PPMI is “grateful” to have someone like Nessel fighting for reproductive rights as AG, but added the lawsuit is “necessary to ensure our providers have legal clarity and our patients can continue to access abortion in the immediate aftermath of the Supreme Court decision.

“While PPMI is grateful that Michigan has a strong champion for reproductive rights in the attorney general’s office, her personal vow to not enforce the state’s 1931 criminal abortion ban cannot take the place of a court order enjoining all state actors and agents from pursuing criminal enforcement of a ban on abortion and is not binding on all prosecutors,” LaBelle said.

“Naming the attorney general, in her official capacity, as the defendant in this case was necessary to obtain an injunction which prevents anyone — including any state officials, county prosecutors and local law enforcement — from enforcing this cruel and archaic abortion ban.”

Both Planned Parenthood and Gov. Gretchen Whitmer have filed lawsuits in separate attempts to protect abortion rights in Michigan. If Roe v. Wade is overturned, as a leaked court opinion suggested, Michigan would revert back to a 1931 state law that criminalizes abortions in all instances unless it is to protect the life of the pregnant woman.

This law has stayed on the books for over 90 years, but has been moot since Roe was decided.

Nessel has pledged since campaigning in 2018 that she would not enforce the law if Roe were to fall, but Planned Parenthood — which endorsed Nessel in 2018 — filed a lawsuit last month against her to block enforcement of the state’s 1931 felony abortion ban.

“I’m not happy that they sued me, I’ll tell you that right now,” Nessel said Wednesday. “I think that there is a misperception out there that there was some coordination. There was not.”

No matter what (Enbridge says) about (Line 5), it's not become any safer. It's just become older. And it is still a safety risk. And it still is a catastrophic risk to the safety of the Great Lakes.

– Attorney General Dana Nessel

Nessel also gave her take on Enbridge’s bid to bring her 2019 lawsuit against the Canadian oil company into federal court, an effort that would greatly diminish her odds of winning the case if Enbridge succeeds.

Her lawsuit seeks to decommission the controversial Line 5 pipeline via public trust protections and other state laws. It had been on pause while Whitmer v Enbridge played out — Whitmer’s own attempt to shut down the pipeline under the Straits of Mackinac — but was slated to start up again in state court after Whitmer dropped the case when Whitmer v Enbridge was removed to federal court.

Seeking to have their success repeated, Enbridge asked the same judge to remove Nessel’s 2019 lawsuit to federal court as well.

“To be quite frank, I think it’s sanctionable,” Nessel said, noting that she is not aware of any precedent for removing a case after so long. “It’s not how things should work. And why have court rules otherwise?”

That decision on where Nessel’s lawsuit will play out is teed up for a ruling. If the case remains in federal court, the oil company would have the advantage, as Enbridge intends to lean heavily on federal statutes and international commerce arguments to win.

A ruling to remand the case back to state court would give a clear advantage to Nessel.

Attorney General Dana Nessel at the Mackinac Policy Conference, June 1, 2022 | Allison R. Donahue

The following are excerpts from the Advance’s interview with Nessel:

Michigan Advance: We can start with Line 5. … We’re waiting on a decision right now from Judge [Janet] Neff in those two cases. When do you expect to have a decision? Are you expecting a decision at any point in time, soon, in the next few months?

Nessel: What I’ve learned is not to have any timeline expectations sometimes. And I don’t know when Judge Neff will issue her ruling. I will say this, that I find it to be absurd that we filed our case in state court, that Enbridge did not contest that, and that we’ve been litigating in state court for what a year and a half — and then all of a sudden, after they had removed the governor’s case successfully, to say, ‘Oh, well now we’re going to remove this, too.’ 

I think people should think about the precedent that that sets. Where you file a case, there’s no effort to remove [it to another court], it’s being litigated, you have briefs that are filed, cases that are argued. And then all of a sudden, at any point in the proceedings for one party to say, ‘I don’t like the rulings you give me.’ Or, ‘I don’t like the judge I got.’ And, ‘I don’t like how things are going, now I want to go to federal court.’

No, you had your opportunity to remove, and you didn’t do it. You didn’t respond with a request to do that. You proceeded on the case as though it were a state court matter. And then just all of a sudden abruptly to say, ‘I’m going to federal court.’ It’s ridiculous. And that’s not the way the system should work.

Michigan Advance: Is there any sort of precedent for that?

Nessel: Not that I’ve seen. If there is, I’ve not heard of a situation where you can be litigating the case for that long, completely blown through the court rule by a hundred times over, and then all of a sudden decided that you want to move the case. And I do think it’s a delaying tactic on the part of Enbridge. To be quite frank, I think it’s sanctionable.

Sanctionable that they would wait so long and have proceeded in state court as long as they did, and then to just abruptly decide that they want to remove the case. It’s not how things should work. And why have court rules otherwise?

Enbridge sign, St. Ignace | Laina G. Stebbins

Michigan Advance: Are you concerned that the deliberation might go into election season? Are you hoping for a ruling before November?

Nessel: The thing is this: This is a commitment that I made when I ran for office, so much so that I had signs that said, ‘Vote for Dana Nessel to shut down Line 5.’ I’m always open to reevaluating the position if I receive information that is different. I’m never going to be the kind of elected [official] where I’m not open to receiving new information that can possibly change my mind. … But I’ve been in office now for three and a half years. And it’s not just that I haven’t received any information that would dislodge my fears of a spill, of a rupture of Line 5. The opposite is true.

Now I’m here four years later at the Mackinac Policy Conference talking about the exact same issue. The pipeline has not gotten safer. It’s only gotten older. This is a line that was never intended to operate for even half the amount of time it’s now operated. At its inception, nobody understood just how aggressive the currents were and that they were 10 times that of Niagara Falls. So we’re not safer than we were before. This situation is just as precarious.

So I’m not backing down. Now, I understand that Enbridge has put on this exhaustive and incredibly expensive marketing campaign to make people think that it’s safer. It’s not. No matter what they say about it, it’s not become any safer. It’s just become older. And it is still a safety risk. And it still is a catastrophic risk to the safety of the Great Lakes.

… But when you talk about when it’s going to happen, if we receive some sort of a ruling, I’m here to do my job and I’m here to fulfill my promises to the public. And if that impacts me politically, so be it.

Michigan Advance: Regarding the Planned Parenthood lawsuit, what is your relationship with Planned Parenthood right now?

Nessel: Well, I’m not happy that they sued me. I’ll tell you that right now. I think that there is a misperception out there that there was some coordination. There was not.

Michigan Advance: Between you and Planned Parenthood?

Nessel: Correct. This was not something where we worked on it together and decided that they’re going to sue me, and that I was going to respond a certain way. I was pretty unhappy about it, because I had vowed not to enforce the law, so I thought it was ridiculous that they were suing me to stop me from enforcing a law that I had pledged never to enforce. 

And I didn’t like the fact that I felt as though I was being cornered into defending a law that I felt was indefensible. And then I had said all along, I believe that the 1931 law violates not just the United States Constitution, as the courts have ruled for almost 50 years now, but that it also violates the Michigan Constitution. I was displeased to be placed in that position by one of my allies who supported me.

Now, that being the case, understanding that I’ve made clear that I felt as though not only would I not enforce the law, but I thought that it was indefensible, I invited the Republican Legislature to intervene. They invite themselves to intervene all the time. So here they appropriated themselves $750,000 to intervene. And I told them that I would not object if they did so; if they wanted to defend the law, they were welcome to do so without objection from my office. And I think that certainly any court would’ve allowed them to do that. And they decided not to.

They try to intervene in our cases all the time. … But here’s a case where I said, ‘I can’t defend the law because it violates my oath of office.’ Yet I take an oath to uphold the Michigan Constitution and the United States Constitution and I believe this violates both. But you, Republican Legislature, if you want to come in I’m sure any court of law would grant you standing to intervene.’ And they didn’t. And I think the question should be, if they believe so strongly that this is a law that is, A. legally defensible, B. ought to be enforced, why would they not have intervened?

I didn't like the fact that I felt as though I was being cornered into defending a law that I felt was indefensible. … I was displeased to be placed in that position by one of my allies who supported me.

– Attorney General Dana Nessel on the Planned Parenthood lawsuit against her

Michigan Advance: Did they provide a reason?

Nessel: No, they didn’t return … we have multiple emails that we sent them. I said publicly several times, ‘Come on in.’ And I said it in our first press conference. I said, ‘We welcome you to come and intervene.’ And they still didn’t do it. No response. … It is bizarre. I don’t know why. You would obviously have to ask them. But again, they appropriated themselves three quarters of a million dollars for the purpose of this and then they did not use it to intervene.

Michigan Advance: What is your view on the Planned Parenthood lawsuit itself, as opposed to the governor’s lawsuit? Would you have thought that just the governor’s lawsuit would be substantial enough, or do you think the Planned Parenthood lawsuit was necessary?

Nessel: No, I didn’t think it was necessary. I thought that Planned Parenthood worked with the governor because that way you’re suing the county prosecutors. … Even though there are a lot of county prosecutors that take the position that I’m taking right now, you had Republican county prosecutors that were defending the law. And so I thought: Why not sue somebody who’s vowing to enforce it? Why would you sue me when I’ve said that I’m not going to enforce it? 

To me, there wasn’t a cause or controversy because you’re trying to sue me to stop me from doing something I’m not doing. That didn’t make sense to me. We’ll see what the Court of Appeals has to say about that. I don’t think it accomplished the same thing as the governor’s lawsuit.

But I will say in terms of my refusal to defend, yes I believe it violates the Constitution, so it’s unethical for me to defend a law that I think is unconstitutional. But for the Republicans that complain about that, I didn’t hear them complain at all when the Trump administration declined to defend the ACA [Affordable Care Act]. They refused to, and this is not a law that has ever been deemed to be unconstitutional. And yet they said, ‘We’re not going to defend it.’ 

So you know who did? I did. So did the other Democratic AGs. We had to step in and defend that law. And obviously it was defensible because we won in front of a very conservative Supreme Court. We still won and the ACA now, of course, is still in effect because of that.

I get a little tired of the, ‘Oh, you’re lawless, you won’t defend this law.’ I don’t do that all the time, but this is a promise I made in 2019. And the voters voted for me, I think in part because of my stance that I took in the event that Roe were to be overturned. I made it very clear. I did a campaign commercial that was just on this and they voted for me. They obviously thought that that was an important position that I’d take. 

I am fulfilling my campaign promise by giving that, my promise I made to the voters, and I’m doing exactly what I said I was going to do. But like I said, I didn’t hear the Republicans complain when the Trump administration didn’t defend the ACA. It’s hypocritical for them now to say, ‘Well, you should be defending this.’

Michigan Advance: Do you think that SCOTUS will likely overturn Obergefell, as well?

Nessel: Yes. Yes. I don’t see how they don’t. Because … you have a number of rulings that came forward that were based on the same exact premise as Roe v. Wade.

My opinion is, as soon as you get a challenge … that, ‘Well, now that Roe is gone, then you have eliminated this doctrine.’ This whole theory wasn’t just about Roe, but also Obergefell, also Lawrence [v. Texas], also other cases. If you’re going to challenge it, I think that a court could likely say, ‘Well, the Supreme Court instructs us that there is no right to privacy anymore and as such that would also impact something like Obergefell.

… I do absolutely think Obergefell is in dire jeopardy of being reversed sometime in the near future.

nessel
Attorney General speaks at Michigan Pride on the Capitol steps, June 15, 2019 | Susan J. Demas

Michigan Advance: Could a ballot measure help protect same-sex marriage in that instance?

Nessel: Absolutely. A ballot proposal would have to be constitutional, because remember we had with a statute and we had the Michigan Marriage Amendment that was passed in 2004. You have both of those, and you can have a ballot proposal that would say that both of those are invalid, appealing both of those and that there’s a constitutional right to same sex marriage. That could happen.

However, here’s the problem with that. We would have this patchwork, the same way we did pre-Obergefell, so that you’d be married in Michigan but if you don’t have the reciprocity — full faith and credit is what it’s called. You can be in Michigan taking a trip to Florida, you could drive through states where, now you’re married, now you’re not married, now you’re married, now you’re not married. 

And what it does is it affects commerce too, because it affects your ability to move. And this is what we saw during the famous Obergefell years, you’d have people who got married and they were legally married in California or New York or Massachusetts and they’d say … ‘Well, I can’t go to Michigan because I’m not going to be married there.’

And so it created a lot of commerce related issues as a result. If Obergefell is overturned, that’s what we’d go back to. … The other problem that created is, people couldn’t get divorced. Because you’d get married in another state, but you could only get divorced in the state where you live. … And even if your marriage isn’t recognized, it was recognized by the federal government, so you had to file two separate returns. One as a married person and one as a single person.

Obergefell solved those issues. If Obergefell is overturned, it’s going to create … just havoc.

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Laina G. Stebbins
Laina G. Stebbins

Laina G. Stebbins covers the environment, Native issues and criminal justice for the Advance. A lifelong Michigander, she is a graduate of Michigan State University’s School of Journalism, where she served as Founding Editor of The Tab Michigan State and as a reporter for the Capital News Service. When Laina is not writing or spending time with her cats, she loves art and design, listening to music, playing piano, enjoying good food and being out in nature (especially Up North).

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