Posted by Eugene Volokh:
Wisconsin Attorney General Won't Defend the State Domestic Partnership Law
Against a Constitutional Challenge:
http://volokh.com/archives/archive_2009_08_16-2009_08_22.shtml#1250878676
A reader passes along this statement from the Wisconsin Attorney
General (and news reports seem to confirm that it's genuine):
In November 2006, Wisconsin voters amended our State Constitution
to declare that marriage was between one man and one woman. The
amendment prohibits our government from recognizing any other legal
status substantially similar to marriage. But the general domestic
partnership provisions contained in Act 28 do just that -�
recognize a legal status that is substantially similar to the legal
status of marriage.
That is why I cannot represent the state in this case.
My decision isn�t based on a policy disagreement. As Attorney
General, I prosecute and defend laws that I wouldn�t have voted for
if I were a policymaker. That is what I believe the job entails.
But I will not ignore the Constitution. 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.
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 Chapter
770. I am unwilling to do either.
The e-mail from the Attorney General's office containing the statement
also contained the following:
BACKGROUND AND BASIS FOR ATTORNEY GENERAL�S DECISION NOT TO DEFEND
STATE IN CHALLENGE TO DOMESTIC PARTNERSHIP LAW (CHAPTER 770)
([1]Show the rest of the message.)
Case and Procedural Posture: The case in question, Appling, et al. v.
Doyle, et al., 2009AP001860-OA (Wis. Sup. Ct.), is a petition to the
Wisconsin Supreme Court to take jurisdiction as an original action
challenging the constitutionality of Chapter 770, which establishes a
�legal status� of Domestic Partnerships. The Supreme Court has ordered
a response from the state respondents (who include Governor Doyle,
Secretary of Health Services Karen Timberlake, and State Registrar of
Vital Statistics John Kiesow) which is due at the end of the month.
The Court has not yet ruled whether it will consider the petition on
its merits. That decision is a matter of the Court�s discretion.
Basis For Decision
Van Hollen declined to represent the state respondents because he
concluded Chapter 770 (establishing the legal status of Domestic
Partnerships) was unconstitutional.
Legal Reasoning
Article XIII, Section 13 of the Wisconsin Constitution provides:
Only a marriage between one man and one woman shall be valid or
recognized as a marriage in this state. A legal status identical or
substantially similar to that of marriage for unmarried individuals
shall not be valid or recognized in this state.
The constitutional analysis does not hinge on a comparison of benefits
conferred by law to those who are married and those who are domestic
partners. The constitutional analysis must focus on the nature of the
�legal status� of domestic partnerships and whether that status is
�substantially similar to marriage,� as the text directs.
The legislature made clear its intent as to what it believes the
�legal status� of a domestic partnership entails. The express purpose
of Chapter 770 is to �provide the parameters of a legal status of
domestic partnership.� Wis. Stat. § 770.001. It defines a domestic
partnership as the �legal relationship that is formed between 2
individuals under this chapter.� Wis. Stat. § 770.01(2). Chapter 770,
in turn, does not define the legal relationship in terms of benefits,
but in terms of criteria for entering the relationship. Those criteria
include (1) two adults, (2) of the same sex, (3) who have the capacity
to contract, (4) who are unmarried and not in another domestic
partnership, (5) who are no closer in relation than second cousins,
and (6) who share a common residence. Wis. Stat. § 770.05.
�Marriage, so far as its validity at law is concerned, is a civil
contract �� which creates the legal status of husband and wife.� Wis.
Stat. § 765.01. A marriage relationship�s criteria requires (1) two
adults, (2) of the opposite sex, (3) who have the capacity to
contract, (4) who are unmarried, (5) and who are no closer in relation
than second cousins. See Wis. Const. Art. XII, Sec. 13; Wis. Stat.
§§ 765.01, 765.02(1), 765.03.
These criteria are not only substantially similar to the criteria
necessary to enter a domestic partnership, they are nearly identical.
In conclusion, Article XIII, Sec. 13 prohibits the recognition of a
�legal status� that is �substantially similar to marriage.� The
expressly stated intent of Chapter 770 is to provide the parameters of
the legal status of domestic partnership. Those parameters mimic the
required parameters of entering into marriage, with the exception that
couples in a domestic partnership must be of the same sex as opposed
to different sexes and that they must also share a residence at the
time the relationship is created. Because the legislature has
recognized that Chapter 770 creates a �legal status,� and defines the
status with reference to criteria that are �substantially similar� to
those criteria required to enter marriage, Chapter 770�s creation of
domestic partnerships is unconstitutional.
([2]Hide most of the above.)
It also notes, in answering the question, "Will the Law Be Defended?,"
that "Wisconsin law authorizes the governor to appoint special
counsel."
I haven't looked at this closely, and thus have no opinion on whether
the Attorney General's position is sound, but the story struck me as
interesting, so I thought I'd note it.
References
1. file://localhost/var/www/powerblogs/volokh/posts/1250878676.html
2. file://localhost/var/www/powerblogs/volokh/posts/1250878676.html
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