John M. Becker

Wisconsin AG: Marriage Equality is Just Like Abortion

Filed By John M. Becker | July 24, 2014 10:00 AM | comments

Filed in: Marriage Equality, Politics
Tags: abortion, Barbara Crabb, false equivalency, gay marriage, marriage equality, same-sex marriage, tradition, Wisconsin

falseequivalency_keith_kohn.jpgThe far-right Republican Attorney General of Wisconsin, J.B. Van Hollen, argued in a brief filed yesterday with the 7th U.S. Circuit Court of Appeals that marriage equality is like abortion and that Wisconsin's tradition of marriage discrimination is a perfectly rational basis for continuing to obstruct the freedom to marry.

The Associated Press reports:

But Van Hollen said in his brief that the due process clause in the U.S. Constitution doesn't require states to grant rights but only bars them from depriving citizens of fundamental rights. Crabb's decision amounted to the creation of a new right of gay marriage, and letting it stand would greatly expand federal authority into an area traditionally controlled by states, he said.

Van Hollen compared gay marriage to abortion.

"Although the constitutional right of privacy protects a woman's right to obtain an abortion and precludes government from prohibiting or punishing her exercise of that right, there is no corresponding obligation on government to affirmatively endorse or support her exercise of the abortion right," he wrote.

Van Hollen also said sexual orientation has not been declared a "suspect class" subject to heightened protection like gender or race, and therefore doesn't deserve the same kind of deference in equal protection claims.

Marriage equality is like abortion? Holy false equivalency, Batman! That comparison is so patently absurd that it doesn't even merit a serious response.

Van Hollen also whipped out the "states' rights" argument -- that old standby of those who defend discrimination -- in his brief, arguing that the Supreme Court's gutting of DOMA amounted to a recognition that states, not the federal government, have the authority to define marriage however they wish.

More, after the break.

If Van Hollen's appeal to "tradition" sounds confusing, it's probably because when U.S. District Court Judge Barbara Crabb found the state marriage discrimination amendment unconstitutional last month, she resoundingly smacked down that very same argument. Crabb wrote:

"Both defendants and amici defend Wisconsin's same-sex marriage ban on the ground of tradition. Defendants say that '[t]he traditional view of marriage--between a man and woman...--has been recognized for millennia...' Amici go even further to state that 'virtually all cultures through time' have recognized marriage 'as the union of an opposite-sex couple.'

"As an initial matter, defendants and amici have overstated their argument. Throughout history, the most 'traditional' form of marriage has not been between one man and one woman, but between one man and multiple women, which presumably is not a tradition that defendants and amici would like to continue. ('Polygyny, whereby a man can have multiple wives, is the marriage form found in more places and at more times than any other.')."

Perhaps Van Hollen is a glutton for punishment and wants to take the state's losing "tradition" argument -- which has consistently failed in court in the post-Windsor era -- out for round two? Either that, or Van Hollen knows he'll ultimately lose this battle and he's decided to throw the appeal and merely put up token resistance, for appearances' sake.

jb-van-hollen-wisconsin.jpgRegardless, Wisconsin's claim that "tradition is a rational basis" for discrimination should send chills up the spine of every person who belongs to a minority group that's historically faced discrimination -- including women, Jews, Catholics, Muslims, African Americans, and Latinos. After all, if a history of discrimination justifies continued discrimination in the case of LGBT people, how is it any less "rational" to argue that other types of discrimination deserve the same deference?

Thankfully, though, Judge Crabb isn't the only federal jurist to see through this smokescreen: appeals to "tradition" as an excuse to discriminate in marriage have been found to be bogus and bankrupt in state and federal courtrooms across the country. And equally important, a new poll from Marquette University Law School -- also released yesterday -- shows that the people of Wisconsin utterly reject the state's defense of marriage discrimination: fifty-six percent of Wisconsinites would vote to repeal the state's marriage ban if they could, while just 37 percent say they'd vote to keep it.

Despite J.B. Van Hollen's and Scott Walker's best efforts, the writing on the wall is clear: the days of marriage discrimination in Wisconsin are numbered.

The state of Wisconsin's anti-equality brief is below, via Equality Case Files.

14-2526 #53 by Equality Case Files

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