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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)

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.

Steve:
The courts generally seem to have permitted "pro-family" and other such interest groups to serve as intervenors in these cases. I don't know what the argument in defense of the statute might be, but I'm sure there is some group out there willing to make it. Better to have some arbitrary interest group making the argument than no one at all.
8.21.2009 2:29pm
Bob from Ohio (mail):
Doyle just announced he is not running for re-election. Seems like the AG is announcing his candidacy for Governor.
8.21.2009 2:30pm
troll_dc2 (mail):
The attorney general appears to be on solid ground. If the sentence "A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state" does not include domestic partnerships, then it is meaningless. I personally am not pleased with this conclusion, but I see no way to avoid it.
8.21.2009 2:37pm
Bama 1L:
I don't agree with Van Hollen's legal reasoning. The domestic partnership law violates the state constitution if it creates a "legal status identical or substantially similar to marriage." To make that determination, we would look at the effects of the legal status, not the conditions for entering it.

Anyway, surely it is a policy decision whether to try to distinguish the domestic partnership law from what the state constitution forbids or not to try to do so.
8.21.2009 2:40pm
Bama 1L:
I should perhaps say that I agree with the conclusion; the domestic partnership law does create a legal status substantially similar to marriage and thus violates the state constitution. I just don't think Van Hollen gets us there. He needs to explain how being in a same-sex domestic partnership is substantially similar to being married.

I lived in Wisconsin in 2006 and voted against that amendment, by the way.
8.21.2009 2:43pm
corneille1640 (mail) (www):
Not that this is relevant in this case, but what if the attorney general believed (in good faith) that the benefits program were mandated by the US Constitution. Would he then have grounds for defending the program even though it violated that part of his oath to defend the Wisconsin constitution?

Please note, I'm not claiming that domestic partnership programs are mandated by the federal constitution.
8.21.2009 2:45pm
martinned (mail) (www):
Does the AG in Wisconsin have an independent connection to the people of the state, or is he simply a cabinet member similar to the Federal AG?
8.21.2009 2:45pm
Virginia:
The attorney general is separately elected in Wisconsin. Gov. Doyle is a Democrat; AG Van Hollen is a Republican.
8.21.2009 2:59pm
JBeuks (mail):
The AG of Wisconsin, like most state AGs, is independently elected, not appointed by the Governor. This one is a Republican, first elected in 2007: http://en.wikipedia.org/wiki/J.B._Van_Hollen
8.21.2009 3:01pm
A Law Dawg:
Martinned,

They are elected. Van Hollen, a Republican, won with 50.2% of the vote in 2006.
8.21.2009 3:02pm
martinned (mail) (www):
@Virginia, JBeuks &A Law Dawg: Thanks. That certainly makes the AG's position more defensible.
8.21.2009 3:12pm
einhverfr (mail) (www):
Interesting.


The attorney general appears to be on solid ground. If the sentence "A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state" does not include domestic partnerships, then it is meaningless. I personally am not pleased with this conclusion, but I see no way to avoid it.


I would suggest a few elements involved here that might allow the law to be defended:

1) What does "substantially similar" mean? How similar does this have to be to be "substantially similar?" For example, business partnerships (the ones with unlimited liability) are arguably substantially similar to marriage. What are the specific similarities in this case? What should a judge look at in deciding whether to analogize or differentiate? Or does the amendment prohibit business partnerships too unless they are corporations or llc's?

2) What factors should a judge consider regarding equal protection clauses? Are those applicable either from the State or Federal Constitution? How do they affect "substantially similar" analysis?

The AG's job is to provide the court with relevant arguments on behalf of the government and let them interpret the laws and Constitutions in appropriate ways. Even if the court decides to strike down the law, presumably the legislature gets some guidance in the process. The unwillingness to defend the law at all robs the legislature of important guidance in future cases and is IMO a gross dereliction of his duties. However let's see what happens and if the governor appoints a special counsel to argue the case.
8.21.2009 3:40pm
AF:
I'd like to know what the Attorney General's statutory duties are with respect to defending state statutes. For most Attorneys General, this statement is inaccurate in the context of deciding whether to defend a statute:

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.

AG's usually have a duty to defend statutes against attack if there is a colorable argument in favor of them. Unless the benefits under Wisconsin's domestic partner law are essentially identical to those of marriage, there is a colorable argument that they are not "substantially similar" to marriage, in that "substantially similar" can be read to mean that there are no differences of substance.
8.21.2009 3:43pm
martinned (mail) (www):
@einhverfr: Normally, the rule is that a lawyer may not make frivolous arguments, meaning that the law would go undefended if there is no non-frivolous argument in its favour. Would you say that an elected AG has more latitude than that? Where does one draw the line?
8.21.2009 3:45pm
troll_dc2 (mail):

The unwillingness to defend the law at all robs the legislature of important guidance in future cases and is IMO a gross dereliction of his duties.


It is better that the attorney general withdraw from the case, since he cannot defend it in good faith. This way the governor can find someone who will look for every legal argument possible to protect the statute.

The questions that you raise are ones that the special counsel could pursue, but I think that trying to defend the statute on state equal protection grounds will go nowhere. Even if Wisconsin has a broadly interpreted e.p. clause, I do not see how it can apply to another, and more recently enacted, provision of the same constitution.
8.21.2009 3:48pm
AF:
This interpretation strikes me as debatable at best:

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.

. . .

These criteria [for marriage] are not only substantially similar to the criteria necessary to enter a domestic partnership, they are nearly identical.

Under this logic, the legislature could not give any benefits to domestic partners, no matter how dissimilar to the benefits of marriage, because domestic partnership is defined similarly to marriage. On the other hand, if the state defined domestic partnership under different criteria than marriage (eg, requiring proof of prior cohabitation) then the benefits could be identical to marriage because "constitutional analysis does not hinge on a comparison of benefits conferred by law to those who are married and those who are domestic partners."

That cannot be what the voters intended.
8.21.2009 3:56pm
ShelbyC:

Unless the benefits under Wisconsin's domestic partner law are essentially identical to those of marriage, there is a colorable argument that they are not "substantially similar" to marriage, in that "substantially similar" can be read to mean that there are no differences of substance.


I'm sure you'd have to take into account the context. In some contexts, you could say in good faith that the two are not substantially similar because one applies to opposite sex couples and the other applies to same sex couples. But a judge ruling that in this case should be impeached.
8.21.2009 3:58pm
Careless:
AF:

in that "substantially similar" can be read to mean that there are no differences of substance.

Your argument is that "substantially similar" has (or can have) precisely the same meaning asto "substantially identical"?
8.21.2009 3:59pm
Careless:
(-to)
8.21.2009 3:59pm
AF:

I'm sure you'd have to take into account the context.


What is it about the context that makes you think the benefits of domestic partnership are irrelevant to whether it is a "substantially similar" legal status? If domestic partners were treated as individuals for purposes of state taxes, were not allowed to own property by tenancy in common, and had no rights of inheritance, wouldn't there be a pretty good argument that domestic partnership isn't "substantially similar" to marriage?
8.21.2009 4:02pm
AF:
Your argument is that "substantially similar" has (or can have) precisely the same meaning asto "substantially identical"?

Well, "substantially identical" is a contradiction in terms, so I'm not sure what you are asking.
8.21.2009 4:04pm
Careless:
It's not a contradiction, you're using the wrong definition of "substantially."

It's referring to the substance, not suggestive of the quality.
8.21.2009 4:08pm
ShelbyC:

What is it about the context that makes you think the benefits of domestic partnership are irrelevant to whether it is a "substantially similar" legal status?


Not sure I follow. I don't think that.
8.21.2009 4:09pm
Careless:
And if I'm using the wrong definition, then "substantially similar" is redundant.
8.21.2009 4:10pm
AF:
Careless,

I'm still not quite following your point. In any event I think "substantially similar" can easily be read to mean that there are no differences of substance. In fact, I think that is the best reading of the constitutional amendment, which prohibits granting unmarried individuals a legal status that is "identical or substantially similar" to that of marriage.

If the amendment read "identical, substantially the same, or substantially similar," then I would agree with you that "substantially similar" cannot mean "not identical but with no differences of substance." But as written, I think that's exactly what it means.
8.21.2009 4:19pm
AF:
Not sure I follow. I don't think that.

Sorry, I thought you were disagreeing my argument. It appears that we agree on what "legal status" means, and disagree with the AG.

For what it's worth, I agree with you that it would be untenable to argue that domestic partnership for same-sex couples is not "substantially similar" to marriage (though under the AG's idiosyncratic interpretation of "legal status" that argument actually makes sense!)
8.21.2009 4:23pm
Careless:
Ok, here's the problem:
"substantially similar" means "similar in substance". You are saying, once again, that "similar in substance" is the same as "there are no differences in substance" which I do not think can be a reasonable reading of the word "similar"

Where did I go wrong?
8.21.2009 4:26pm
AF:
Where did I go wrong?

I think you are wrongly assuming that the word "similar" requires some minimum degree of difference, such that two things with very minor differences cannot be "similar."

Or perhaps you are assuming "substantially similar" somehow connotes a greater degree of difference than just "similar."
8.21.2009 4:39pm
John Howard (eggandsperm.org) (mail) (www):
This is why Civil Unions need to have a substantial difference in legal status to be Constitutional and acceptable to voters.

The substantial difference should be "conception rights" - marriages should have the right to conceive offspring, and Civil Unions shouldn't. They should be defined as "marriage minus conception rights" to make it explicit that every other aspect of them is identical. And even though every other aspect is identical, they are not "substantially similar" because their substance is absolutely different. The essence of marriage, the universal, historical meaning of giving society's approval to the couple conceiving offspring, would be missing from Civil Unions.
8.21.2009 4:47pm
einhverfr (mail) (www):
Martinned:

Normally, the rule is that a lawyer may not make frivolous arguments, meaning that the law would go undefended if there is no non-frivolous argument in its favour. Would you say that an elected AG has more latitude than that? Where does one draw the line?


The AG should not make frivolous arguments, or those which are fully foreclosed by precedent. However, when there are no strong nonfrivolous arguments that a law is Constitutional left, I think the role shifts.

At that point the goal should be to elucidate problems of interpretation for the court so that an opinion doesn't become problematic later. For example, how do we know what makes a legal arrangement "substantially similar?" Arguing that a broad reading of the amendment would outlaw unlimited partnerships in business seems rather nonfrivolous to me.
8.21.2009 4:55pm
Russ (mail):
Wow, a lawyer who actually thinks the will of the people, expressed through their constitution, is truly the highest law of the land, and not the personal views of a group of activists.

Some faith in our republic has been restored.
8.21.2009 5:05pm
einhverfr (mail) (www):
And John Howard's last post bolsters my point considerably. Would such a domestic partnership law as he proposes pass Constitutional muster in Ohio?
8.21.2009 5:14pm
Dave N (mail):
Or even Wisconsin?
8.21.2009 5:21pm
arbitraryaardvark (mail) (www):
This is what AG's should, but don't do, whenever they are asked to defend unconstitutional statutes. I express no opinion as to whether this statute is unconstitutional or not.
I am confident this AG is opting out because he doesn't like the statute, not because he consistently defers to the constitution.
8.21.2009 5:22pm
Brian K (mail):
Am I the only one that finds it problematic that one person feels so empowered that he can freely ignore the will of the legislature? and can declare a law unconstitutional without being a judge?
8.21.2009 6:05pm
Smallholder (mail) (www):
If the AG's first duty is to defend the state's constitution, than I think that the AG is absolutely right not to defend the statute. I disagree with the policy implications, but Wisconsin amendment is clear.

But do state AGs have a responsibility to the national constitution? Could he have defended the law by arguing that the Wisconsin Amendment is void because it conflicts with Federal equal protection of the laws? The U.S. constitution trumps the state constitution.

Have there been cases of state AGs who argue against their own state constitutions and/or legislatures? Were there any state AGs who refused to defend opposition to Brown v. Board?
8.21.2009 6:18pm
John Howard (eggandsperm.org) (mail) (www):
einhverfr, thanks for asking for people to weigh in, maybe finally Professor Volokh will address that aspect. What do you think? Does it pass muster in your opinion?

I think that your example of business partnerships, which have some aspects of the legal commitments of marriage, is interesting. They, like the Civil Unions I propose, do not protect the conception rights of a couple, which is proven because siblings are allowed to be business partners, after all. And being business partners never exempted the partners from fornication and illegitimacy laws, but marriage has always meant the couple is allowed to have sex and attempt to procreate children. And clearly the intention of the law wasn't to prohibit business partnerships. So Civil Unions defined as marriage minus conception rights are in between marriage and business partnerships, but still substantially different from marriage.

Certainly being prohibited from procreating is substantially different from being allowed to procreate, right?
8.21.2009 6:43pm
Danny (mail):
@ John Howard

All of your comments about "conception rights", as you call them, are a non sequitur in this debate. Currently in much of the USA, all people (gay and straight) have "conception rights" even in the absence of any marriage, civil union, domestic partnership or any connection at all. The octomom can go out and get unlimited IVF all by herself, just like any lesbian can. You may not like it, but that's the American legal situation with or without gay marriage, civil unions, etc. You guys in the USA all want health care as a for-profit service? Well be careful what you wish for because it is only the profit margin is the only thing that matters in providing any kind of private fertility and conception treatments.

Not so in Europe. There are countries with SSM and civil unions but which do not have "conception rights" as you call them. So please don't mix up what are two separate and unrelated legal questions.
8.21.2009 6:55pm
Danny (mail):
Ack I apologize for bad re-editing
8.21.2009 6:56pm
Putting Two and Two...:

Wow, a lawyer who actually thinks the will of the people, expressed through their constitution, is truly the highest law of the land, and not the personal views of a group of activists.


By "group of activists", do you mean the state legislature?

I'm no lawyer, but as I read the amendment and the statue, I agree with the AG that the statute is unconstitutional. Of course, I go beyond that and consider the federal constitution and I view the state amendment as unconstitutional. My guess is an AG who did the same wouldn't be getting the same pats on the back he's getting now.

As to whether civil unions are "substantially similar" to marriage, I confess to being a bit startled that some of those who now say yes! are the same folks who insist that SSM and traditional marriage are completely different things. It's hard to keep up sometimes...
8.21.2009 7:08pm
ArthurKirkland:
I would not know what an attorney general should do in this situation.

Neither, I sense, would J.B. Van Hollen, a political/nepotism appointee as district attorney three years after law school graduation (a situation that reflects poorly on both ends of the appointment). Those supporting the legislative enactment are probably better served by a special prosecutor.
8.21.2009 7:09pm
John Howard (eggandsperm.org) (mail) (www):
Danny, in England, they have Civil Partnerships, and same-sex conception is prohibited, along with all non egg and sperm procreation. But yes, in America, same-sex couples currently have 'conception rights', or at least are not prohibited from attempting to procreate, and should therefore be allowed to marry in every state, per Zablocki. But that should change, we should do what England and most European countries have done and prohibit cloning and genetic engineering and same-sex conception. We are idiots for not reaping the benefits of a ban on cloning.

And no, marriage IS conception rights. Sure, you can conceive without getting the official right from the government now, but so what? That is irrelevant to the rights of marriage, and to whether we should allow same-sex couples to attempt to procreate or not. Don't try to confuse people with irrelevant obvious uncontested points.
8.21.2009 7:33pm
einhverfr (mail) (www):
John Howard:

The question still remains what "substantially similar" means. I don't agree with you regarding the Constitutionality of DOMA nor do I agree with you about SSM as a matter of policy. However all this disagreement makes this issue far more interesting.

The question of how broadly "substantially similar" is read is an interesting question. If it is read narrowly enough, I would agree with you that civil unions are not substantially similar to marriage. If, on the other hand, it is read very broadly, unlimited partnerships in business might be illegal.

But lets look at this more carefully. My own thinking is that this language is just asking for problems. The framers of the amendment probably intended it to mean substantive replacements for marriage. However, that isn't what it says.

If we go with a structural analysis of the sort you and I both propose we can discuss different levels of structural similarity. At what point these become substantial is an interesting question.

Therefore I can see the following arguments being presented:
1) Domestic partnerships, like business partnerships don't create a separate "legal status" for the purposes of the amendment.
2) Domestic partnerships, like business partnerships, aren't similar enough to marriage to fall under the amendment.

Now the key issue here is not whether the court strikes the provision down but under what test. The legislature can then look at the court's opinion and determine what changes they need to make to be outside that precedent. For example, if the court rules that divorce proceedings make it substantially similar, the legislature could provide that domestic partnerships could be dissolved by contract.
8.21.2009 7:41pm
einhverfr (mail) (www):
John Howard:

But that should change, we should do what England and most European countries have done and prohibit cloning and genetic engineering and same-sex conception. We are idiots for not reaping the benefits of a ban on cloning.


As much as I disagree with you on the SSM issue, I agree with you on those points.
8.21.2009 7:43pm
JohnGalt47 (mail):
"Have there been cases of state AGs who argue against their own state constitutions and/or legislatures? Were there any state AGs who refused to defend opposition to Brown v. Board?"

Don't know about Brown vs Board of Education, but Jerry Brown is famously opposing Prop 8 in California, an amendment to the State Constitution.
8.21.2009 9:43pm
John Howard (eggandsperm.org) (mail) (www):
einhverfr, it depends on how Wisconsin defines Civil Unions. If they don't specify any difference in the substantive legal rights of the relationship. You seem to be arguing as though they are merely different names for the same legal status, which is clearly substantially similar. No matter how broadly read, no one would say that a being allowed to conceive together and being prohibited are at all similar. And that is the essential and unique core of marriage, no marriages have ever existed that were prohibited from procreating, and no other legal status has ever protected and approved of conceiving children together.

Wisconsin's DP's do have a slight difference (share a residence), but that is only a protection against fears of fraud, it doesn't change the substantive rights of the couple.
8.21.2009 10:52pm
Danny (mail):

And that is the essential and unique core of marriage, no marriages have ever existed that were prohibited from procreating, and no other legal status has ever protected and approved of conceiving children together.


That's just absolute nonsense. Various countries have approved same-sex marriage without allowing even adoption or in-vitro fertilization, etc. (Belgium has gay marriage without gay adoption, if I'm not mistaken, and Spain has various restrictions both on adoption and fertility treatments). The gov't can approve whatever combination of rights it wants to.

And it is patently falsee to say "no other status" protects and approves of conception. Half of children are born out of wedlock. The legal differences between legitimate and illegitimate children have been eliminated. There is no government license for conception as much as you wish that one existed. You should really visit a Midwestern trailer park someday and see for yourself. Watch talk shows. People have sex for fun - and the girls/women (or their parents) get stuck with babies. It's the women's problem to deal with, the guys take off. What isolated little world are you living in?
8.21.2009 11:48pm
John Howard (eggandsperm.org) (mail) (www):
If Spain allows marriages between people it prohibits from conceiving together, then it has stripped marriage of its protection of conception rights for everyone in Spain. Using sperm donors and adopting are not the same as conceiving together and are not rights of marriage. I don't know if Spain has prohibited cloning with an egg and sperm law like England has, so maybe it has not prohibited same-sex conception and marriages have not been stripped of conception rights.

Being "out of wedlock" is not a legal status, it is a lack of a legal status. Yes, we've eliminated illegitimacy as being a breach of Equal Protection rights for the children, but doing that did not change the legitimacy of being born in a legal marriage, marriage still does what it always did, and that's why we still don't let siblings marry. Marriage still is a government license for conception, you just don't really need one anymore, because paternity tests enabled courts to enforce marriage obligations and correct the injustice of abandonment. That was a good thing. But don't contend that it stripped conception rights from marriage! Show me one married couple that the government prohibits from conceiving together - there aren't any. All couples that are prohibited from procreating together are ineligble for marriage, still. And if there were any marriages that didn't have a right to procreate together, it would be a first, and be really bad news.
8.22.2009 1:40am
GatoRat:
This argument is more than silly; Attorney General's and District Attorney's all over the country choose to not defend some laws. They do plea bargains and all sorts of things. That's their prerogative. Yes, it would be my preference that local, state and federal politicians get rid of laws that aren't commonly prosecuted and that they refrain from passing unconstitutional laws, but that's what elections are for.
8.22.2009 2:33am
NickM (mail) (www):
No countries prohibit people from traveling back in time either. Biological facts and laws of physics just don't require much legislative approval to be operative.

Nick
8.22.2009 3:04am
Public_Defender (mail):
In previous posts, I've criticized a prosecutor for not defending an anti-gay law, but here, the AG is wrong to not defend the state law.

Even if an argument is correct on the merits (I don't concede that, I just assume that for this post), there are frequently procedural defenses to be raised. Standing is often a big problem for these lawsuits.

Also, the court said it is decided whether to take jurisdiction to hear the case. There are always arguments why a court with discretionary jurisdiction should not hear a case. For instance, it's possible that abother action is better suited. Maybe it makes more sense to let lower courts sort through this first. Etc., etc., etc.

In short, the attorney general is neglecting his duties. He has a statute to defend.
8.22.2009 6:03am
David M. Nieporent (www):
In short, the attorney general is neglecting his duties. He has a statute to defend.
I'm pretty sure this argument is just a pretext for liking the law.

Let's suppose the legislature passes a law which says, "Criticizing the governor shall be a class E felony, with a penalty of up to $1000 and 18 months in jail." Suppose the local newspaper brings a declaratory judgment action to have the law struck down. Should the AG defend it? Should he use procedural tricks -- such as challenging standing of the newspaper -- to avoid having it struck down? Why?

His "duties"? If the AG believes a statute is unconstitutional, then his duty is not to defend it, because an unconstitutional law is no law at all.
8.22.2009 8:08am
Public_Defender (mail):
David M. Nieporent, if the AG has a basis to defend the State against the challenge, that's his duty. Even if the law were unconstitutional, the AG could and should still argue that the court should exercise its discretion not to hear the case (In this case, the court's order makes it appear that hearing this case is the court's discretionary call.) or that the challenge is procedurally flawed.

A lawsuit can seek a lawful goal yet be meritless if the plaintiff doesn't have standing or if the cause of action is the wrong one.

The US Supreme Court and many state supreme courts turn away thousands of cases with meritorious issues every year by exercising their discretion not to hear the cases. Are you saying it would be frivolous for the AG to argue that here?

My clients would benefit if "that law's unconstitutional" cured all procedural defects and automatically invoked any court's jurisdiction in any action. But that ain't the law.
8.22.2009 9:00am
Lymis (mail):
Here's a non-hypothetical: By what rational argument can a legal status that grants only 43 of the over a thousand benefits and responsibilities of marriage be considered "substantially similar?"

This isn't California's Domestic Partnership law, that actually does confer all of the state benefits of marriage. It grants a tiny percentage of them.
8.22.2009 11:31am
troll_dc2 (mail):

If the AG believes a statute is unconstitutional, then his duty is not to defend it, because an unconstitutional law is no law at all.



But is the AG necessarily right? Does he get to determine what is constitutional and what is not? Your statement seems to have been written under the influence of Ex parte Young.

I approve of the Wisconsin AG's decision only because he would be a bad advocate for the statute. I also think that the statute is inconsistent with the state constitution. But only the state supreme court is empowered to make that determination.
8.22.2009 11:33am
John Howard (eggandsperm.org) (mail) (www):
Here's a non-hypothetical: By what rational argument can a legal status that grants only 43 of the over a thousand benefits and responsibilities of marriage be considered "substantially similar?"

It's complicated because, as we all know, people don't require a marriage license to procreate anymore, so even though it isn't one of those 43 rights, same-sex couples have the sine non qua of marriage anyhow. That makes all the benefits that people don't have until marriage "incidental benefits", added to the now universal but still essential, substantive, non-incidental right of the legal status of marriage.

This is why einhverfr's musings about business partnerships being unconstitutional are possible, too, because even business partners have procreation rights today.

What CU's need to get by laws like this is an explicit missing essential right, not just a partial number of benefits. And perhaps states or the federal government should affirm the essential right of marriage is to procreate together using the couple's own genes, so that we don't have to explicitly say that business partners also don't have conception rights (that way siblings could not form busniess partnerships, or same-sex partners, after the egg and sperm law).
8.22.2009 1:03pm
John Howard (eggandsperm.org) (mail) (www):
We don't really need to affirm that "marriage is [just|simply] about the right to have sex" (and therefore to procreate) because Justice Kennedy affirmed that in Lawrence, when saying that it would demean a couple's marriage to say that it was only that ("just" and "simply" are his words, in the opinion and the syllabus). So that's an affirmation of what the court believes is the minimal most essential right of marriage.
8.22.2009 1:16pm
Danny (mail):

It's complicated because, as we all know, people don't require a marriage license to procreate anymore


As if people ever needed a marriage license to procreate.. have you ever watched the Discovery channel? Sexual reproduction is a lot older than humanity itself


If Spain allows marriages between people it prohibits from conceiving together, then it has stripped marriage of its protection of conception rights for everyone in Spain.


This doesn't make sense.. there is no such thing as "conception rights". Every single adult has the right to conceive children. Marriage and civil unions have nothing to do with it. Your whole focus on the gov't regulating artificial ways of creating babies has no bearing on the same-sex marriage or civil unions debate. You are really off-topic. And the USA is the least regulated country in the world with respect to fertility treatments and sci-fi ways of creating babies, because of its extensive private health industry, BTW
8.22.2009 2:19pm
zuch (mail) (www):
Please ignore John Howard before he completely thread-jacks the discussion with his peculiar and paranoid (not to mention tedious) obsession. That is all.

Cheers,
8.22.2009 2:26pm
David M. Nieporent (www):
But is the AG necessarily right?
Of course not. Neither is a court when it decides.
Does he get to determine what is constitutional and what is not?
Of course. He doesn't merely "get to"; he has to. He took an oath to uphold the constitution; enforcing an unconstitutional law would not be upholding the constitution.
Your statement seems to have been written under the influence of Ex parte Young.
Not sure what that has to do with anything, as I was talking about the state constitution, not the federal.
I approve of the Wisconsin AG's decision only because he would be a bad advocate for the statute. I also think that the statute is inconsistent with the state constitution. But only the state supreme court is empowered to make that determination.
Everybody is empowered to make that determination. (The legal effect of doing so varies depending on who one is, of course.)
8.22.2009 2:57pm
Public_Defender (mail):

Everybody is empowered to make that determination. (The legal effect of doing so varies depending on who one is, of course.)

Everyone except the AG, who has a duty to defend it if he has a non-frivolous procedural or substantive argument. Substantively, does the registry confer the status, or just allow people to register if already meet a set of criteria? Second, if the registry only opens of a small fraction of marriage rights, it ain't substantially similar. Remember, the standard is whether those arguments are frivolous, not whether they would win.

Also note that you came up with no response to my procedural argument that that state supreme court should exercise its discretion not to hear the case. Is that frivolous? Standing might also be a non-frivolous issue.

Obama has to hold his nose and defend the odious DOMA. Here, the Wisconsin AG has a job to do. As someone else pointed out, though, maybe he did the state a favor. If he would insist on botching the job, he's right to lt someone else to it.
8.22.2009 6:24pm
David M. Nieporent (www):
Everyone except the AG, who has a duty to defend it if he has a non-frivolous procedural or substantive argument.
I'm afraid I disagree. A private attorney has a duty to his client to make any non-frivolous argument, yes. But a government attorney has other duties.
8.22.2009 7:08pm
Public_Defender (mail):

I'm afraid I disagree. A private attorney has a duty to his client to make any non-frivolous argument, yes. But a government attorney has other duties.


When it comes to defending statutes, not so much. It's as wrong for the AG to refuse to defend a statute when non-frivolous arguments exist to defend it as it was for Mayor Newsom to refuse to follow a statute that he correctly determined was unconstitutional.

I once watched a prosecutor basically concede the unconstitutionality of an anti-gay statute. I agreed with her view, and I was glad to see the statute go, but that wasn't her job.

The system depends on government lawyers defending statutes. Otherwise, Bush could have eliminated many environmental statutes by adopting a strict view of takings. Obama could eliminate DOMA and DADT. In states where local prosecutors represent the state in criminal matters, local prosecutors could concede the constitutionality of statutes that other prosecutors might defend. An anti-death penalty AG could personally eliminate the death penalty in his or her state by refusing to defend against challenges to sentences.

It's an adversary system, and it's the AG's job to defend statutes. Any AG who wants to pursue a personal agenda should stay in private practice and carefully pick his or her clients.
8.22.2009 9:37pm
Careless:


I think you are wrongly assuming that the word "similar" requires some minimum degree of difference, such that two things with very minor differences cannot be "similar."

It might be that I'm wrongly assuming that, but I'm fairly confident that I'm very correctly assuming that
8.23.2009 12:31am
Careless:
In other words, the use of "similar" instead of "identical" especially when "identical" has already been used should make it a virtual certainty that there is supposed to be a difference to be found
8.23.2009 12:33am
Careless:
Anyway, AF's objection would be reason #1 I hate lawyers if I had just stumbled upon the law a few days ago. Something so obviously correct opposed to a ridiculous degree in defiance of plain dictionary meanings not just at the time of analysis, but at the time of dictionary composition (being basically the same in this case)
8.23.2009 12:38am
John Howard (eggandsperm.org) (mail) (www):
As if people ever needed a marriage license to procreate.. have you ever watched the Discovery channel? Sexual reproduction is a lot older than humanity itself

Gee, if only someone had said that before!

The point, Captain Obvious, is that, since civilization developed thousands of years ago, people have not had an unlimited right to procreate with whoever they felt like. They'd get punched, stoned, hanged, fined, shotgunned, etc. Humanity, all over the globe in almost every religion, came up with the idea that people are only supposed to have sex with someone they have publicly committed and consented to and received society's approval to procreate with. We've had thousands of years of cultures saying these two people may have children together, not with anyone else, and they're called married. All marriages everywhere so far have been allowed by the state to procreate together. Never has a couple been allowed to marry by any state that the state also prohibited from procreating together. There have been billions of couples that have been prohibited in principle from ever procreating together, but never has one been allowed to marry.

This doesn't make sense.. there is no such thing as "conception rights". Every single adult has the right to conceive children.

Conception rights are the same as marriage rights, that's why we have never referred to them as "conception rights".

Marriage and civil unions have nothing to do with it.

Marriage does, and Civil Unions could be defined as being marriage minus conception rights. voila, something to do with it. My point is about how to get CU's around amendments like Wisconsin's and California's, it is very relevant to this thread, to real people's lives and to constitutional scholars.

Your whole focus on the gov't regulating artificial ways of creating babies has no bearing on the same-sex marriage or civil unions debate. You are really off-topic.

nope, you're wrong. Volokh's silence proves I'm right.

And the USA is the least regulated country in the world with respect to fertility treatments and sci-fi ways of creating babies, because of its extensive private health industry, BTW

Right, and also has the worst record on protections for same-sex couples. England has much better protections for same-sex couples, and a very regulated IVF industry that isn't afraid to debate same-sex conception in Parliament.
8.23.2009 12:47am
David M. Nieporent (www):
When it comes to defending statutes, not so much. It's as wrong for the AG to refuse to defend a statute when non-frivolous arguments exist to defend it as it was for Mayor Newsom to refuse to follow a statute that he correctly determined was unconstitutional.
I repeat: I'm afraid I disagree (particularly since your argument was not merely that he should defend a statute but that he should use procedural gimmicks to avoid having a court rule on it even if it is unconstitutional.)
I once watched a prosecutor basically concede the unconstitutionality of an anti-gay statute. I agreed with her view, and I was glad to see the statute go, but that wasn't her job.
Yeah, it was. If one believes a statute is unconstitutional, one is not supposed to wash one's hands of it, Pilate-like (*), and say that it's the court's job to decide.
The system depends on government lawyers defending statutes. Otherwise, Bush could have eliminated many environmental statutes by adopting a strict view of takings. Obama could eliminate DOMA and DADT. In states where local prosecutors represent the state in criminal matters, local prosecutors could concede the constitutionality of statutes that other prosecutors might defend.
And their superiors can fire them, or, in the case of elected officials, the legislature can impeach them. Or the courts could appoint someone to represent the state and defend the statute in such an instance.
An anti-death penalty AG could personally eliminate the death penalty in his or her state by refusing to defend against challenges to sentences.
An anti-death penalty prosecutor can personally eliminate the death penalty in his jurisdiction by refusing to seek the death penalty in cases. Prosecutorial discretion.

The AG is not a clerk at the DMV; his job is not purely ministerial. He's elected (or appointed) to use his own judgment.
It's an adversary system, and it's the AG's job to defend statutes.
But it's not a purely adversarial system. Again, yes, if he was in private practice that would be the case, but a government official is different. A private attorney's duty is to his client; a government attorney's duty is justice, not just to his "client." If a prosecutor, for instance, comes to believe that a person is innocent, he is not supposed to zealously try to put that person in prison (or to keep that person in prison if the person was already convicted) merely because he can think of some colorable argument for so doing.
Any AG who wants to pursue a personal agenda should stay in private practice and carefully pick his or her clients.
Obviously. But I'm not talking about a "personal agenda." I'm not talking about a situation where he dislikes a statute; I'm talking about a situation where he determines that the statute is unconstitutional.

A quick google shows that the AG takes this oath: "I, _______, having been elected or appointed to the office of Attorney General swear (or affirm) that I will support the constitution of the United States and the constitution of the State of Wisconsin, and will faithfully and impartially discharge the duties of said office to the best of my ability. So help me God."

Defending a statute that violates the constitution is not faithfully supporting the constitution.


(*) I think that's the right metaphor; I'm not a goy, so what do I know about it?
8.23.2009 6:22am
Lou Gots (mail):
The substantial similarity of the marriage and domestic partnership is reflected by the relevant statute's replication of the exact same degree on consanguinity as a, impediment to entering the status.

Homosexuals observe the incest taboo. Who knew? I would have thought that as long as one were sinning, it was in for a penney, in for a pound, so to speak.
8.23.2009 8:23am
John Howard (eggandsperm.org) (mail) (www):
The incest taboo might be a Wisconsin law, and it might not be limited to hetero incest, so they didn't want to be in conflict with that law. It shows they remember that marriage is about allowing the couple to have sex, though.

It didn't have to be reflected in a law for same-sex couples, but two factors resulted in it, I think: one was fear of fraud such as avoiding inheritance tax by old sisters and single parents and children, and the other was the desire by gays that the statute not include platonic couples or incestuous couples because they want it to officially affirm homosexual love and behavior as morally equivalent to straight marriage.
8.23.2009 11:48am
Danny (mail):

The point, Captain Obvious, is that, since civilization developed thousands of years ago, people have not had an unlimited right to procreate with whoever they felt like. They'd get punched, stoned, hanged, fined, shotgunned, etc. Humanity, all over the globe in almost every religion, came up with the idea that people are only supposed to have sex with someone they have publicly committed and consented to and received society's approval to procreate with. We've had thousands of years of cultures saying these two people may have children together, not with anyone else, and they're called married.


You're just making this up because it's your personal opinion. You really need to travel more before you make some sweeping statements about "all cultures" as an armchair anthropologist. Just a brief reality check:

- In almost no culture are men expected to be virgins before marriage
- In many/most cultures a man is never supposed to pass up an opportunity for sex with a good-looking woman either before or after marriage. Virginity before marriage and sexual fidelity in marriage are for women only, for men's benefit because they are territorial and have a reputation to maintain. Pregnancy and conception are something women have to deal with, not men. The more men a woman sleeps with the more she is a slut, the more women a man sleeps with, the more he is a stud. Religious American men would not be viewed as "real men" in a lot of macho cultures. Faithful to your wife = half a step above gay there.
- In many cultures that don't value virginity (i.e our culture now), women, too, can screw anyone they want before marriage with no limitation or social sanction.
- Prostitution is the world's oldest profession, often legal acceptable and considered perfectly moral, or even incorporated into religious ceremonies in some cultures.
- In many cultures (i.e. indigenous cultures of the Americas) the man can trade his wife for sexual favors for friends/visitors, and that's not seen as negative or immoral.
- Low class women who don't marry have always been able to have unlimited sex and illegitimate children because their family/personal honor is already nonexistant. These women hurt their marriage prospects because men would be embarrassed to marry "damaged goods" not because of any religious or moral sanction.

Your idea of past worldwide "social sanction" of sex and procreation outside marriage is a Puritanical fantasy, as well as an egalitarian American fantasy. In much of the world procreation and sex have been restricted only when this is to the advantage of important men and by extension their female relatives (=property)
8.23.2009 3:56pm
yankee (mail):
There are some significant differences between Wisconsin domestic partnerships and Wisconsin marriages. Among many other things, Wisconsin domestic partnerships do not provide:

1) A mutual obligation of support;
2) Access to the rights and obligations of Wisconsin's system governing marital property; and
3) Access to the rights and obligations associated with terminating the relationship through divorce proceedings.

I know nothing about Wisconsin constitutional law, so I have no idea whether or not these differences are important enough to prevent the relationship from being "substantially similar" to marriage under the meaning of the Wisconsin constitution. But there's no doubt that there are nonfrivolous arguments in defense of the domestic partnership act.
8.23.2009 4:39pm
John Howard (eggandsperm.org) (mail) (www):
Danny, again that's obvious, and again (purposefully) misses the point, which is that people do not have an unlimited right to procreate with whoever they want. All cultures everywhere have come up with laws and punishments that limit conception rights, even as they have also tacitly accepted lots of exploitation and privilege and illicit sex alongside the licit sex of marriage. In all cultures, a husband and a wife are allowed to have sex and children. This is the main point. Do you dispute this point still? Finding examples of people having kids out of wedlock and getting away with it does not disprove the point. You will have to find a couple that was publicly prohibited from attempting to procreate together, but was still allowed to marry, to disprove my point. We certainly could change marriage to include couples that are prohibited from procreating together, but that would be bad.
8.23.2009 5:15pm
John Howard (eggandsperm.org) (mail) (www):
Oh, and citing China's one child policy would be a bad idea. First of all, they still allow one child, and more importantly, that is exactly the sort of Totalitarian violation of basic human rights that I am warning of. It is certainly possible to strip procreation rights from marriage, require forced abortions, contraception and sterilization, screened selected donor gametes, refuse fertility treatment, etc, but we should preserve the basic human right to procreate with one's own genes, and the basic civil right to do it in marriage, with one's chosen spouse's own genes.
8.23.2009 6:25pm
Public_Defender (mail):

. . . since your argument was not merely that he should defend a statute but that he should use procedural gimmicks to avoid having a court rule on it even if it is unconstitutional. . . .

"Procedural gimmicks" like, standing, failure to state a claim, filing the wrong cause of action, or not filing a discretionary appeal that's not appropriate to be decided are called "the law." Allowing someone to win a case against the state with an action that doesn't entitle that person to relief is not upholding an oath to defend the law.

A cause of action must be correct procedurally AND substantively to be entitled to win.

If I think my client is guilty, I still have a duty to force the prosecutor to file procedurally correct actions and to follow the rules of evidence and procedure.


Yeah, it was. If one believes a statute is unconstitutional, one is not supposed to wash one's hands of it, Pilate-like (*), and say that it's the court's job to decide.

Yeah, and if I think my client is guilty, I'm supposed to give up.

If a prosecutor, for instance, comes to believe that a person is innocent, he is not supposed to zealously try to put that person in prison (or to keep that person in prison if the person was already convicted) merely because he can think of some colorable argument for so doing.

A prosecutor is supposed to exercise discretion as to whom to prosecutor. A prosecutor is not supposed to exercise discretion in deciding which statutes he or she believes is constitutional. Whether a statute is constitutional or not should not depend on whether the SG is Thurgood Marshall or Ted Olson.

Their personal beliefs are irrelevant. If they have a non-frivolous legal argument to defend a statute.
8.23.2009 8:31pm
David M. Nieporent (www):
If I think my client is guilty, I still have a duty to force the prosecutor to file procedurally correct actions and to follow the rules of evidence and procedure.
Yes, as a criminal defense lawyer. A prosecutor is not a criminal defense lawyer, and has different obligations. If he thinks your client is innocent, for instance, he does not have a duty to force you to file procedurally correct actions and to follow the rules of evidence and procedure.

A prosecutor is not supposed to exercise discretion in deciding which statutes he or she believes is constitutional.
I. Disagree.
Whether a statute is constitutional or not should not depend on whether the SG is Thurgood Marshall or Ted Olson.
Obviously not. But that speaks to the issue of whether they can in good faith come to different conclusions, or whether they're substituting their policy preference for constitutional analysis.
8.23.2009 10:00pm
ReaderY:
I think it's reasonable for an attorney general to refuse to personally defend a statute he or she strongly believes is unconstitutional, as the Wisconsin statute here may well be. Nonetheless, so long as a reasonable argument can be made for the statute's constitutionality, the attorney general should hire outside counsel -- presumably counsel sympathetic to the other side -- to undertake the role.

As in other matters involving "reasonable" and "rational basis" standards, in my view the relevant question is not whether the attorney general personally believes the arguments reasonable, but whether otherwise reasonable people are making them. The question of whether something is debatable is, at bottom, empirical: are people in fact debating it? If a real debate is actually going on, claiming a question is obvious beyond debate is, in my view, an abuse of discretion. Otherwise the attorney general, like a judge in an analogous situation, would only be defending statutes he or she agreed with (or didn't disagree with too strongly).
8.24.2009 1:43am
John Howard (eggandsperm.org) (mail) (www):
What's done is done. What matters is how can Wisconsin achieve equal protections for same-sex couples in a way that doesn't countervene the explicit will of the people. They didn't want to call same-sex couples married. That means they didn't want to give the sine qua non essential meaning of marriage to same sex couples. That essential meaning is conception rights. They can not give same sex couples conception rights, and not give same-sex couples marriage, but still give them equal protections by creating civil unions that are defined as marriage minus conception rights.

Right? I'd love to hear Professor Volokh's opinion. Merci.
8.24.2009 2:01am
Public_Defender (mail):

Me: Whether a statute is constitutional or not should not depend on whether the SG is Thurgood Marshall or Ted Olson.

Response: Obviously not. But that speaks to the issue of whether they can in good faith come to different conclusions, or whether they're substituting their policy preference for constitutional analysis.

If they can "in good faith come to different conclusions," then there is a good faith basis to defend the law, and they must do so. Most constitutional disputes have good faith arguments on both sides. If we allowed AGs to substitute their "good faith" beliefs for objective legal analysis, AGs would, in effect, become judges.

I give you credit for consistency, but I hope you see the same in my points. I wouldn't want an AG to give up on, say, the constitutional of tough gun control laws just because that AG personally believes in a narrow interpretation of the Second Amendment.

But at this point, we're just bouncing back saying, "I think the AG's role is X." Neither of us has cited sources, and I don't have time to do the research. We've reached the end of productive argument unless we can find citations to back up our positions.
8.24.2009 5:47am
Mikeyes (mail):
Here is the section of the WI law defining domestic partnerships:

CHAPTER 770
DOMESTIC PARTNERSHIP
770.001 Declaration of policy. The legislature finds
that it is in the interests of the citizens of this state to
establish and provide the parameters for a legal status of
domestic partnership. The legislature further finds that
the legal status of domestic partnership as established in
this chapter is not substantially similar to that of marriage.
Nothing in this chapter shall be construed as inconsistent
with or a violation of article XIII, section 13, of the
Wisconsin Constitution.
770.01 Definitions. In this chapter:
(1) "Domestic partner" means an individual who has
signed and filed a declaration of domestic partnership in
the office of the register of deeds of the county in which
he or she resides.
(2) "Domestic partnership" means the legal relationship
that is formed between 2 individuals under this chapter.
770.05 Criteria for forming a domestic partnership.
Two individuals may form a domestic partnership
if they satisfy all of the following criteria:
(1) Each individual is at least 18 years old and capable
of consenting to the domestic partnership.
(2) Neither individual is married to, or in a domestic
partnership with, another individual.
(3) The 2 individuals share a common residence.
Two individuals may share a common residence even if
any of the following applies:
(a) Only one of the individuals has legal ownership
of the residence.
(b) One or both of the individuals have one or more
additional residences not shared with the other individual.
(c) One of the individuals leaves the common residence
with the intent to return.
(4) The 2 individuals are not nearer of kin to each
other than 2nd cousins, whether of the whole or half
blood or by adoption.
(5) The individuals are members of the same sex.

The law (which is the 2009 WI budget) goes on in different sections to define what rights domestic partners have (as one person commented in the papers:" 40 of 120 rights given married people"), how to terminate a domestic partnership, and how to obtain one. The cost is the same as a marriage license by law but varies in each county. It is cheaper in WI to get a tavern license than a marriage license, as it should be.

Why is constitutional to allow a specific class to have such an arragement and not heterosexual couples who don't want to be married not have it? Common law marriage does not exist in WI although there are plenty of couples, often with children, living together in this state (both meanings of the word.)
8.24.2009 10:50am

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