Almost immediately after Federal Judge Bernard Friedman’s March 21 ruling that Michigan’s same-sex marriage ban was unconstitutional, Michigan Attorney General Bill Schuette filed for an emergency stay. Saturday, after almost 300 couples married in the state, that stay was granted and later lengthened into a more permanent stay that will last for the duration of the appeals process.

While Schuette is not the first attorney general to be put in this position, he is one of the first to fight the appeal of the ban so vigorously and also do so in the midst of a re-election campaign.

In several statements to the press, Schuette said his motivation is to defend both the will of the people and Michigan’s Constitution —which has raised questions about what the role of an attorney general is during this situation, given the actions of attorney generals in previous cases. The U.S. Attorney General also issued a directive earlier this year advising state attorney generals not to fight the overturning of gay marriage bans.

During similar cases in Kentucky and California, state attorney generals have chosen to allow the case to move through the courts without getting directly involved. Instead, other interested parties, such as the proponents of the original bans, were the ones who filed for the appeal.

Law Prof. Samuel Bagenstos said Schuette’s actions appear to have a deeper motivation than what he has stated. Bagenstos added that getting directly involved in the filling for the stay steps out of the requirements of his office.

“The way that he has described what he’s doing is that simply that he’s carrying his obligations out as attorney general and I’d say that’s not right,” Bagenstos said. “I think the only justification for him to be doing what he’s doing is that he truly believes that it’s constitutional for a state to prohibit people of the same sex from getting married.”

On Monday afternoon, Joy Yearout, the attorney general’s director of communications, reiterated that Schuette’s motivation is to defend the Michigan constitution. She added that, to Schuette, the other state attorneys’ decisions to remain uninvolved in similar cases is wrong.

“Attorney generals across the country have a responsibility and a duty to defend the constitution and that’s what we’re doing here in Michigan,” Yearout said.

Peter Sprigg, senior fellow for policy studies at the Family Research Council, wrote in a statement there are certain narrow exceptions in which an attorney general would be justified in not defending a state law, but that this case isn’t one of them.

“Such a decision should only be made when the state law violates a clear and explicit provision of the constitution or violates a clear precedent of the U.S. Supreme Court,” he wrote. “No provision of the U.S. Constitution refers to marriage (or for that matter to “sexual orientation”) and no Supreme Court decision has ever stated that states cannot define marriage as the union of a man and a woman, so those exceptions do not apply here.”

In context of Schuette’s previous actions as attorney general, his unprecedented direct involvement does not come as a surprise.

Schuette has been the attorney general since 2011. Before that, he sat on Michigan’s Fourth District Court of Appeals, was a state senator and U.S. representative and ran the state’s agricultural department under former Governor John Engler. For all of the elected positions he’s held, including attorney general, he has run as a Republican.

Schuette has taken conservative stances in previous cases as well. In 2012, following the Obama administration’s mandate that birth control be included in the health care plans of a large number of religious organizations, he called himself a leader in a nationwide effort by attorney generals to repeal the mandate. In 2011, he spoke out against medical marijuana use, leading to a brief recall effort against him that was ultimately unsuccessful.

Bagenstos said that most attorney generals generally do not consider themselves apolitical, with Schuette not being an exception to that rule.

“He’s obviously conservative. His positions line up much more with conservative politics than with some clear objective sense of the role of an attorney general independent of politics, “ Bagenstos said. “So I don’t think it’s much of a surprise that he’s taken positions that align with conservative politics.”

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