WI Gov. Walker uses tactics favored by gay groups to drop state defense of law establishing domestic partnership registry
First, on this occasion, I disagree with Wisconsin Governor Scott Walker. He should let the state’s domestic partnership registry stand. And as chief executive of the Badger State, he is wrong to ask that the state be allowed to stop defending it:
Gov. Scott Walker believes a new law that gives gay couples hospital visitation rights violates the state constitution and has asked a judge to allow the state to stop defending it.
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.
It does seem I already blogged about this.
But, while gay groups may bellyache about Walker’s actions here, they have helped make the case for Walker’s request of Dane County Circuit Judge Daniel Moeser. Recall how HRC worked to pressure the law firm of King & Spalding from representing the House in its defense of the Defense of Marriage Act (DOMA) which, like the Wisconsin legislation in question, was passed by an elected legislature and signed by an elected chief executive.
Other gay groups have commended California Governor Jerry Brown and the state’s attorney general for failing to defend Prop 8, an amendment to the state constitution ratified in the manner stipulated by said document.
For these gay groups, it seems it’s only right for the state’s elected officials not to defend the constitutionality of a law when they don’t like the law. Otherwise, it’s just jim-dandy. But, in praising a state for not defending a provision enacted in accordance with its constitution and criticizing an elected legislature from defending a law similarly enacted, they have endorsed the rationale Governor Walker is using to drop the state’s defense of the state’s domestic partnership registry.
Seems some believe the rule of law means the rule of the laws they like, not the laws enacted in a republican manner.
NB: I revised and expanded this piece shortly after posting it.
UPDATE: Note this from the article quoted above:
Fair Wisconsin attorney Christopher Clark said the governor’s move raises legal questions.
“It’s not clear to me that a defendant in a lawsuit… can simply walk away from a lawsuit or withdraw,” he said.
According to its website, “Fair Wisconsin is one of the state’s most respected advocacy groups and has a proud history in political action, education, grassroots organizing, and outreach in the cause of lesbian, gay, bisexual, and transgender (LGBT) equality.”
Wonder what he has to say about what the state of California did in the Prop 8 lawsuit (Perry v. Schwarzenegger).
UP-UPDATE: Do think it is an important question about obligations of a state governor to defend a law he deems unconstitutional.
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I’m having trouble following this one – it gathers up a lot of strands, some of them ‘inside baseball’. Is the following summary correct?
1) WI in 2006 banned gay marriage and arrangements that are “substantially similar”, in the State constitution.
2) WI in 2009 legislated a domestic partner registry that guarantees hospital visitation.
3) Believing the 2009 law to be unconstitutional, Gov. Walker has asked to not have to defend it.
4) Gov Walker’s action is analogous to the Brown administration’s unwillingness to defend Prop 8, the Obama administration’s unwillingness to defend DOMA, King & Spaulding’s recent action to withdraw from defending DOMA, etc. – all demanded, or at least applauded, by gay groups. Therefore, criticism of Gov. Walker’s action by the same gay groups would be hypocritical.
5) However, Dan Blatt took the position that the Executive ought to defend all laws on the books (regardless of officials’ personal opinions as to constitutionality) and therefore, Dan Blatt is ironically in a good position to criticize Gov. Walker’s action.
The above right?
Comment by ILoveCapitalism — May 17, 2011 @ 2:57 am - May 17, 2011
(Note: above comment was on the first version of the post, not the “revised and expanded”)
Comment by ILoveCapitalism — May 17, 2011 @ 3:01 am - May 17, 2011
ILC, pretty much. Also check the update (as soon as I add it).
Comment by B. Daniel Blatt — May 17, 2011 @ 3:39 am - May 17, 2011
Just one more reason…. to sign the recall petition
Comment by Paula Brooks — May 17, 2011 @ 4:44 am - May 17, 2011
A disappointment. However, Walker is no more bound to defend a law in court that he believes to be unconstitutional than Schwarzenegger/Brown are. Enforcement of the law in question as long as it remains in effect is another matter entirely since they are indeed duty-bound to do so.
Comment by John — May 17, 2011 @ 7:10 am - May 17, 2011
So Paula,
You’re for recalling Jerry Brown, Eric holder and Barack Obama! Great!
How are you plants growing? And how about your investigation that the AFL-CIO liberated Anzo?
Comment by The_Livewire — May 17, 2011 @ 7:37 am - May 17, 2011
John,
I would quibble on the California thing.
Members of the Legislature, and all public officers and employees, executive, legislative, and judicial, except such inferior officers and employees as may be by law exempted, shall, before they enter upon the duties of their respective offices, take and subscribe the following oath or affirmation:
Prop-8 made DOMA part of the Constitution of California. While Arnie, Moonbeam, et al. may believe it’s unconstitutional, it’s not been shown as such. They swore to defend not only the US Constitution, but the constitution of California. Since binding precident at the Federal Level (Baker v. Nelson) left the definition of Marriage to the states, they violated that oath by declining to defend.
Gov Walker may have weasel room by saying the Law conflicts with the constitution of WI, (I think he’s wrong) But Arnie didn’t. He swore to defend the constitution of California, which Prop-8 Amended.
Comment by The_Livewire — May 17, 2011 @ 9:48 am - May 17, 2011
TL – The oath you quote says the officer will defend the Constitution against *enemies*. Are you saying that in a situation where the officer thinks (rightly or wrongly) that a principle somewhere in the Federal constitution overrides something in the State constitution, the Federal government / constitution is then an *enemy* of the State?
I don’t think that. The very next sentence of the oath brings in upholding the Federal constitution, ahead of upholding the State constitution.
I agree with John’s distinction: the Executive has a duty to enforce the law as written by the Legislature and currently interpreted by the Judiciary… which is *not* a duty to lie to either the Legislature or the Judiciary that he thinks the law is constitutional (when it really doesn’t think it).
Comment by ILoveCapitalism — May 17, 2011 @ 10:50 am - May 17, 2011
ILC,
I think we’re going to disagree on this. Since the Federal Constitution is silent, and the controlling authority says it is a state issue, I don’t see a conflict. So I *do* see it as a significant difference between defending a law, and defending the Constitution. (albiet the state Constitution).
Either way, I feel Walker is just as wrong as Moonbeam, and as President Obama and Holder.
Comment by The_Livewire — May 17, 2011 @ 11:02 am - May 17, 2011
I was asking the question in the abstract, i.e. how far would you go?
But, to bring it back to Walker’s situation: yes, we are going to disagree. The oath (assuming that WI’s is similiar to CA’s) requires the officer to defend the Constitution. Walker feels he is doing exactly that: that his State’s constitution conflicts with (and supersedes) legislation X, and his oath is to uphold the constitution (not legislation X).
In short, I feel Walker is “just as [correct] as Moonbeam, and as President Obama and Holder” at least as regards the issue of who should defend legislation X in court. I acknowledge that Walker, Moonbeam and Obama all have a duty to *enforce* legislation X until and unless it is overturned in court, and perhaps one or more of them could be failing on that score.
Comment by ILoveCapitalism — May 17, 2011 @ 11:15 am - May 17, 2011
(And to be clear, the CA situation is the most complicated, because they did make Prop 8 part of the State constitution – not just another piece of legislation – but then the Executive also has a duty to uphold the Federal constitution and he may believe, rightly or wrongly, that a principle contained in the latter overrides some aspect of his State’s constitution.)
Comment by ILoveCapitalism — May 17, 2011 @ 11:20 am - May 17, 2011
Seems you’re right, Live_Wire, we now have Paula on record as favoring the recall of Jerry Brown and California’s Democratic attorney general!
Comment by B. Daniel Blatt — May 17, 2011 @ 11:44 am - May 17, 2011
Off-Topic: I did manage to discuss gay marriage and civil unions this weekend with someone who disagreed with me completely; and our discussion was pleasant and respectful. And it ended with my counterpart saying, “You’re wrong… but I love you, anyway.”
Comment by V the K — May 17, 2011 @ 1:20 pm - May 17, 2011
It smacks of immaturity when Republicans pretend that liberals simply “don’t like” the laws they deem to be unconstitutional. There is a little more to it than that. People who involve themselves in the political process are not your average Judge Judy fans and you are only damaging your own reputation by misrepresenting the debate as being one of mere opinion. To put it simply, if a law protects all people equally, it is constitutionally sound (talking about the US Constitution NOT state) but if it does not uphold the basic values of the Constitution (including the separation clause) then it can be considered “unconstitutional”. What Scott Walker is trying to do can be chalked up to thumbing his nose at everyone and dancing around saying “I know you are but what am I?” in a PeeWee Herman voice.
Comment by Florida Squeezed — May 17, 2011 @ 1:40 pm - May 17, 2011
So are you cheering that Walker did this? or are you just trying to spin it so that it sounds less shameful than it is?
Comment by Tim — May 17, 2011 @ 1:49 pm - May 17, 2011
Given that Dan’s first statement is: “First, on this occasion, I disagree with Wisconsin Governor Scott Walker. He should let the state’s domestic partnership registry stand.” I assume you can’t be talking to him, Tim.
Given that I’ve said “Gov Walker may have weasel room by saying the Law conflicts with the constitution of WI, (I think he’s wrong)” I know you’re not talking to me.
That said, do you support Arnie and Moonbeam refusing to defend Prop 8? Or do you cheer Holder ignoring DOMA? I assume you condemn them as ‘shameful’ as well.
Comment by The_Livewire — May 17, 2011 @ 1:56 pm - May 17, 2011
Tim: One can believe something is unconstitutional or illegal without also believing it is right. I have no idea what Walker personally believes about this registry, since it after all this ISN’T marriage or even civil unions both of which I think he opposes. He is duty-bound to enforce the law as it exists but isn’t compelled to defend in court a particular law he believes is unconstitutional. Btw, this goes for all those in executive positions whether as president, governor, mayor, etc. regardless of their political position. So yes, as some conservatives were angrily asking when Obama made his decision about DOMA, a future pro-life president who believes Roe vs. Wade is unconstitutional for whatever reason isn’t required to defend it in court, but he IS duty-bound to enforce it as the law of the land. Of course Roe is a SCOTUS decision and not an act of legislation, but the principle is the same I would think.
Comment by John — May 17, 2011 @ 2:10 pm - May 17, 2011
sorry guilty of misreading that article, I missed than sorry Dan! the title was making me cross eyed
Comment by Tim — May 17, 2011 @ 3:36 pm - May 17, 2011
Then I apologize for my tone (on this topic at least) Tim.
Comment by The_Livewire — May 17, 2011 @ 3:43 pm - May 17, 2011
Florida, please address the points I made above about the responsibility of a state’s executive officials to defend its laws. And when you do know, you might also consider avoiding the insults.
Are you saying that the citizens opposing the Wisconsin law — and backed by Governor Walker — are also “not your average Judge Judy fans”.
And please also explain how he is “thumbing his nose at at everyone and dancing around saying ‘I know you are but what am I? in a PeeWee Herman voice” and Jerry Brown is not! Thanks so much!
Comment by B. Daniel Blatt — May 17, 2011 @ 6:51 pm - May 17, 2011
Dan, you’re asking for facts?
Your optimism that a troll can be found who can coherently defend his arguments is so cute!
Comment by The_Livewire — May 17, 2011 @ 9:32 pm - May 17, 2011
To put it simply, if a law protects all people equally, it is constitutionally sound (talking about the US Constitution NOT state) but if it does not uphold the basic values of the Constitution (including the separation clause) then it can be considered “unconstitutional”.
Then, since laws restrict people from marrying more than one person, persons under a certain age, or persons who are too closely related to them, these laws are all a violation of “equal protection” and are thus unconstitutional.
Now, go ahead and try to rebut that argument. I’ll even give you the questions in advance?
1) Since marriage is an automatic constitutional right, why are you blocking these peoples’ happiness?
2) How does allowing them to marry affect your relationship?
3) Why are you using the law to impose your personal morals on others?
Comment by North Dallas Thirty — May 17, 2011 @ 11:14 pm - May 17, 2011
What smacks of immaturity is rambling screeds about the sobriety of Rick Scott based on little more than the fact that, for whatever reason, you just don’t like him.
Comment by TGC — May 18, 2011 @ 2:45 am - May 18, 2011