Wisconsin Attorney General J.B. Van Hollen will not defend state's new domestic registry law against lawsuit; Fair Wisconsin retains Lamda Legal

08/21/09 Wisconsin State Journal:

In Appling v. Doyle (Wis. Supreme Court Case No. 2009AP001860), Wisconsin Family Action seeks to overturn a new domestic registry law because it allegedly violates the "super DOMA" amendment of the state constitution (Art. XIII, Sec. 13). The amendment, adopted in the 2006 election, bans not only same-sex marriage, but also legal status for relationships that are "substantially similar" to marriage.

Attorney General J.B. Van Hollen says that because he has overriding loyalty to the state constitution, and to the "highest expression of the will of the people," he can not defend the law that Governor James Doyle proposed. According to the State Journal, Doyle has "blasted Van Hollen's decision." In his statement, Doyle also links to a memo by "[University of Wisconsin] Law Professor David Schwartz outlining why the domestic partnership registry is constitutional." The State Journal also reports that Van Hollen has not announced whether he will run as a Republican candidate for Governor in the 2010 election.

The state will seek outside counsel to defend the law. Fair Wisconsin has said that it will join in the defense, retaining Lamda Legal as counsel:

"The domestic partnership registry and the constitutional amendment barring same-sex couples from marriage are not in conflict with each other," stated Christopher Clark, senior staff attorney with Lambda Legal. "In the absence of such a conflict, we are perplexed and disappointed by the Attorney General’s decision and we encourage the Governor to vigorously defend the important legal protections that the legislature validly enacted to protect Wisconsin citizens."

Van Hollen's decision bears at least superficial resemblance to decisions by California Attorney General Jerry Brown to oppose Prop. 8 in Strauss v. Horton, and to not defend it in the federal lawsuit, Perry v. Schwarzenneger. In Strauss, Brown claimed that Prop. 8 violates the state constitution's guarantee of inalienable rights, and in Perry, he claims that it violates the federal constitution's guarantee of equal protection. So both Van Hollen and Brown purport to take principled decisions on their respective refusals to defend state law. But there there the superficial resemblance ends, and the real difference begins. Brown justifies his actions by acknowledging fundamental limits that state and federal constitutions impose on the "will of the people" against an unpopular minority. Van Hollen, on the other hand, justifies his action by giving supremacy to popular democracy in the process of constitutional interpretation - a hardline version of "popular constitutionalism."

It's a platitude to attribute politics to Van Hollen's and Brown's decisions. (Brown is also an unannounced contender for a third term as California's governor.) But we can't assess whether political calculation coincides with principle, unless we also consider whether state attorney generals have a sound legal standard of when they should decline to defend state laws. Attorney and journalist Peter Scheer recently proposed a test that sets the bar so high that they would very seldom satisfy it.

At any rate, disputed legal protections of same-sex couples may lead other state attorney generals to follow the examples of Van Hollen and Brown, just as disputed fair housing protections of African Americans led California Attorney General Thomas Lynch to oppose a 1964 state constitutional amendment that would have banned fair housing laws.