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.