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Wis. A.G. won’t defend same-sex law

MADISON, Wis. (BP)–A lawsuit seeking to overturn Wisconsin’s same-sex domestic partnerships law as unconstitutional received a boost Aug. 21 when the state’s attorney general announced that he, too, believes the law conflicts with Wisconsin’s constitutional marriage amendment.

Wisconsin Attorney General J.B. Van Hollen, a Republican, said he will not defend the law in court and is recommending that the state hire private attorneys. The law, which went into effect in early August, establishes a domestic partnership registry and grants homosexual couples some but not all of the legal benefits of marriage. Van Hollen drew sharp criticism from Democratic Gov. Jim Doyle, who signed the law and says other attorneys believe it is constitutional.

The lawsuit was filed July 23 with the Wisconsin Supreme Court by several pro-family attorneys, who argue that Wisconsin’s marriage amendment — passed by 59 percent of voters in 2006 — expressly forbids anything like domestic partnerships. The amendment prohibits not only “gay marriage” but also “a legal status identical or substantially similar to that of marriage.” The Alliance Defense Fund and its allied attorneys filed the suit on behalf of Wisconsin Family Action, the primary sponsor of the 2006 amendment. The high court has not said whether it will hear the case.

“I will not ignore the Constitution,” Van Hollen said in a statement. “My oath isn’t to the legislature or the governor. My duty is to the people of the State of Wisconsin and the highest expression of their will — the Constitution of the State of Wisconsin. When the people have spoken by amending our Constitution, I will abide by their command. When policymakers have ignored their words, I will not.”

Van Hollen said his decision isn’t based on a “policy disagreement.” He added that as attorney general, he defends laws “that I wouldn’t have voted for if I were a policymaker.” But he said that the criteria under state law used to define domestic partnerships and marriages “are nearly identical.” For instance, he said, under the law each must involve 1) two people, 2) who have “the capacity to contract,” 3) who are unmarried and 4) who are no closer in relation than second cousins.

“To defend the law would require me to ignore the command of the voters when they passed the recent marriage amendment or to ignore the expressly stated intent of the legislature in enacting [the law],” he said. “I am unwilling to do either.”

Doyle, who has conflicted with social conservatives in the state throughout his time in office, said the law is “clearly” defensible.

“The Attorney General’s job is to represent the state and defend state law when there is a good faith defense to be made,” Doyle said in a statement. “His representation should not be based on whether he likes the state law…. Constitutional law experts have examined the domestic partnership registry and believe it is sound and not in conflict with the state constitution.”

Ironically, an action by Doyle six years ago may have led to the current controversy. In 2003 he vetoed a bill that would have defined in state law that marriage is the union of one man and one woman. Undaunted, the legislature began the lengthy process to place a marriage amendment on the ballot — a process that does not involve the governor. They succeeded in 2006. Supporters of the amendment pointed to Doyle’s veto — and the lack of any law protecting the natural definition of marriage — as one of the reasons to support a marriage amendment. Doyle recently announced he is not running for re-election in 2010.

The benefits under the new law include hospital visitation rights, the eligibility for family leave, and the ability to make end-of-life-decisions.

The Alliance Defense Fund suit says the new law is “virtually identical” to that of marriage.

In passing the constitutional amendment “the people of this state intended to forbid the official recognition of a differently named legal status accorded to relationships other than those between one man and one woman.” The people, the suit says, intended to prohibit the creation of relationships that will “over time, alter key cultural and legal components of marriage.”

Only the traditional model of marriage, the suit says, “accommodates the differing but inherently complementary natures of men and women and establishes a set of rules, norms and expectations that accommodate the fact that such relationships are potentially procreative.” Recognition of this fact “is rooted in the understanding that the optimal environment for raising children is with their biological mother and father.”

“This unique status is designed to keep those mothers and fathers together for the benefit of children and society,” the suit says.

If marriage is viewed simply as benefiting two adults and not as furthering procreation, childrearing or society, the suit says, then “there is nothing distinctive” about marriage “as opposed to other close and intimate relationships.”
Michael Foust is an assistant editor of Baptist Press. The attorney general’s statement can be read online at http://www.doj.state.wi.us/absolutenm/anmviewer.asp?a=1437&z=3. The lawsuit can be read online at http://www.alliancedefensefund.org/UserDocs/ApplingPetition.pdf.

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  • Michael Foust