Alex Blaze

Wisconsin Governor Wants to Stop Defending Gay Rights

Filed By Alex Blaze | May 17, 2011 8:30 AM | comments

Filed in: Marriage Equality, Politics
Tags: domestic partnership, law, LGBT, scott walker, Wisconsin

Gov. Scott Walker, the conservative ideologue Wisconsin somehow elected to its highest office, has asked the court walker-rights.jpgif 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.

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I don't understand why these state DOMAs and anti-gay constitutional amendments aren't being challenged in federal courts on equal protection grounds -- they're all blatantly in violation of the Fourteenth Amendment by any reasonable standard. At that point, a domestic partner registry becomes moot.

As for Walker, of course he doesn't want to defend it -- why, those domestic partners are all probably union members!

Here's what needs to happen, Hunter:

1) A same-sex couple needs to be legally married in a state which allows it.

2) Said couple then returns to their residence which doesn't recognize marriage equality.

3) Said couple then needs to commit an act or be denied a service because their state or a facility refuses to recognize the marriage. This gives the couple what is called "standing", or the legal foothold to file a civil rights lawsuit against the state.

4) Find a law firm or lawyer who will agree to represent them in court.

Now here's the conundrum I've always brought up in these cases -- why is it that these couples are gay or lesbian? Why haven't there been any marriage equality groups courting intersex and transsexual couples?

The Texas legislature right now has been debating on a bill that would *specifically* deny transgender and transsexual people from marrying a "same-sex" partner!

This stems from the Nikki Araguz case, wherein she had married a cisgender male, had her SRS, then became a widow when her husband died while fighting a fire. His family has filed suit against Nikki for the $600k life insurance policy, claiming she doesn't have the right because she was born a male.

There's also the case of J'Noel Garnier from Kansas, who was denied her inheritance from her husband when his greedy son was able to use his riches to convince the courts that J'Noel was a male, and thus violated their state's DOMA law.

These cases should be as equally discussed as the Perry case and the case out of Massachusetts challenging DOMA.

And yet the Indiana rightwing nutjobs and religious right Republicans still claim that their suggested marriage amendment wouldn't affect domestic partner benefits because, you know, who would want to attack those? They would, that's who.

The Governator's logic seems to be similar to the argument that married people can eat the same breakfast cereal, and so can domestic partners. Obviously, the two are therefore substantially similar. I hope the court hands him his lunch.

Sometimes I look at all the things they are "allowed" to do to us and I just wonder what we should be justifiably allowed to do to them...

What indeed...