Wisconsin Attorney General Won’t Defend the State Domestic Partnership Law Against a Constitutional Challenge:

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)

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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.

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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. Thanks to Matt Bower for the pointer.