Gov. Scott Walker, the conservative ideologue Wisconsin somehow elected to its highest office, has asked the court if his office could stop defending Wisconsin's domestic partnership registry, which gives same-sex couples the opportunity to register for some of the rights of marriage:
Gov. Scott Walker wants to stop defending the state's domestic partner registry in court.
Members of Wisconsin Family Action filed a lawsuit last year arguing the registry creates a legal status similar to marriage, a violation of the Wisconsin Constitution.[...]
It's unclear when Dane County Circuit Judge Daniel Moeser will rule on the motion. Gay rights group Fair Wisconsin is a party to the case and will continue to defend the registry if the judge dismisses the state.
The move is similar to President Obama's move to stop defending DOMA at the federal level because of the Justice Department's and his belief that the act is unconstitutional. The NY Times and the LA Times have not yet published a column yet arguing that it would be a crime against justice itself if a $900/hr lawyer isn't hired to defend the domestic partnership registry.
Of course, the idea that the executive shouldn't have to defend legislation that is clearly and flatly unconstitutional depends on the good faith of the executive. And if a power rests on the good faith and wisdom of a Republican, expect that power to be abused. Here's the text of the marriage amendment:
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 argument in defense of the domestic partnership law is that it enumerates 43 rights, mostly related to death and sickness, while marriage gets 200+ state rights and 1100+ federal rights. The argument against the domestic partnerships is that a "reasonable person" would see them as a substitute for marriage because they borrow the same eligibility requirements of marriage.
It really depends on what "substantially" means in the context of Wisconsin law.
The supreme court in Wisconsin refused to hear a challenge to the domestic partnership registry in 2009, but a conservative organization filed a suit at the circuit court level in 2010. Wisconsin's attorney general refused to defend the registry in court, arguing that it's unconstitutional, which forced the states former governor to hire outside counsel.
But remember: the executive not defending laws it finds unconstitutional is only a gross violation of the democratic process if the law is one conservatives like. The Justice Department and a Democratic president finding that there are no reasonable arguments to be made in favor of a law's constitutionality is clearly a much less serious position to take than a Republican governor deciding that his definition of "substantially" is a bit more inclusive than most people's.