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May 18, 2011

Gov. Walker Won't Defend Wisconsin's Domestic Partnership Law

This has shades of President Obama's refusal to defend DOMA section 3, even though though it was passed by Congress and signed into law by President Clinton. It also recalls Governor Schwarzenegger and AG Brown's refusal to defend Prop 8 in court, despite that constitutional amendment being passed by the people of the State of California.

Governor Walker has declared unconstitutional Wisconsin's domestic partnership law, which was passed by the legislature and signed into law by his predecessor. He is therefore refusing to defend it in court.

Democrats who controlled the Legislature in 2009 changed the law so that same-sex couples could sign up for domestic partnership registries with county clerks to secure some - but not all - of the rights afforded married couples.

Wisconsin Family Action sued last year in Dane County circuit court, arguing that the registries violated a 2006 amendment to the state constitution that bans gay marriage and any arrangement that is substantially similar.

Republican Attorney General J.B. Van Hollen refused to defend the lawsuit, saying he agreed the new law violated the state constitution. Then-Gov. Jim Doyle, a Democrat, hired Madison attorney Lester Pines to defend the state.

Walker, a Republican, replaced Doyle in January and fired Pines in March. On Friday, Walker filed a motion to stop defending the case.

"Governor Walker, in deference to the legal opinion of the attorney general that the domestic partner unconstitutional, does not believe the public interest requires a continued defense of this law," says the brief, filed by Walker's chief counsel, Brian Hagedorn.

What parade of horribles does the domestic partnership law --- alleged by the plaintiff Wisconsin Family Action to be an arrangement "substantially similar to marriage" and thus banned by the anti-gay marriage amendment --- visit upon the good people of Wisconsin?

The registries allow same-sex couples to take family and medical leave to care for a seriously ill partner, make end-of-life decisions and have hospital visitation rights. But according to Fair Wisconsin, they still confer only about a quarter of the rights associated with marriage, lacking provisions to allow couples to file joint tax returns or adopt children together.

I don't know much at all about Wisconsin law or trial procedure. It's possible that the court can and will allow a private party to intervene to defend the law, since Walker won't. It's also possible that this is the effective end of the defense and the judge will have no alternative but to rule in favor of the inaptly named plaintiff.

What I do know that this decision by Governor Walker is cruel. Cruel and cowardly. Republicans presently control the Wisconsin legislature and the governor's mansion. If Walker feels that this is so important, he could attempt to repeal the domestic partner law. Instead he's lending legitimacy to the idea that Governors and Presidents may simply refuse to defend laws with which they disagree and thereby nullify previous legislatures (or, in the case of many Western states, ballot initiatives).

Update: In reply to several commenters:

First, there is a legitimate question whether the domestic partnership registry is "substantially similar" to marriage and therefore banned by the state's anti-gay marriage amendment. Commenters suggesting that I am unaware of the state marriage amendment might want to re-read the post. That's what the lawsuit is about.

Second, to the commenters who believe that the Governor may simply declare that there is no question, that the law is unconstitutional, please distinguish President Obama's DOMA non-defense and Governor Schwarzenegger's Prop 8 non-defense. I've seen them repeatedly criticized here for failing to defend these laws, which they believe to be unconstitutional. By your argument, there is no problem with their decision to "uphold the constitution" by sabotaging court cases.

Yes, an executive may choose which cases to pursue. Obviously, he has no control when the state is the defendant and his constitutional duty is to defend the state if any reasonable argument can be made in defense of state action, whether it's a state agency or a state law.

My irriation with Walker does not stem solely from the fact that he's not defending the state law. He may honestly believe it is unconstitutional and we should assume he's telling the truth about that. It's inexcusable, then, that he continues to enforce this supposedly unconstitutional law -- thereby allowing the lawsuit to proceed -- while refusing to defend it -- thereby sabotaging any defense to the lawsuit.

This is what I objected to about the President's DOMA strategy. Yes, executives can, consistent with their obligations to their constitutions, refuse to defend unconstitutional laws. But there is a serious problem with refusing to defend what they continue to enforce. That's a transparent attempt to create a judicial ruling that the executive can then hide behind when they'd rather not take the heat for their beliefs.

In our system of government, the judiciary has final say over the constitutionality of laws. That doesn't mean that no one else gets to have an opinion. It only means that the judiciary gets the last word. For very important reasons, however, the judiciary relies on the parties to bring each case and to vigorously defend their position. Here, the state allowed this case (WFA wouldn't have standing if the state weren't providing domestic partner registration), but Gov. Walker is choosing to not vigorously defend the state's interest. That's an abdication and it interferes with the court's ability to determine the constitutionality of the law.

Ultimately, executive nullification via sabotaging lawsuits is a form of legislating-on-the-sly that perverts the separation of powers. Small "r" republicans should seriously consider the consequences of letting governors and presidents simply pick and choose which laws they will defend. That sounds a lot like rule by executive whim, rather than representative rule via the legislature.

Oh, one last thing: To the morons suggesting I called Obama's DOMA decision "not a big deal", actually, I called it "unjustifiable" and condemned it.

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posted by Gabriel Malor at 07:31 AM

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