(AP Photo/Morry Gash, File)
A Wisconsin law creating a domestic partnership registry and granting hospital visitation rights to same-sex partners faces an uncertain future thanks to Gov. Scott Walker. It’s the latest step in a slew of controversial and often heavy-handed policy initiatives from Walker as he cultures an increasingly high=profile conservative image.
Gov. Walker announced earlier this week that Wisconsin’s domestic partnership registry was unconstitutional and that he has told state officials to stop defending the measure in court. The law is facing a sustained legal challenge from religious conservative groups that allege the law violates Wisconsin’s 2006 ban on gay marriage.
The legal counsel for Gov. Walker said that the governor believes the registry is “unconstitutional” and continuing a defense of the law is not in the “public interest.”
Gov. Scott Walker believes a new law that gives gay couples hospital visitation rights violates the state constitution and has asked a judge to allow the state to stop defending it.
Democrats who controlled the Legislature in 2009 changed the law so that same-sex couples could sign up for domestic partnership registries with county clerks to secure some – but not all – of the rights afforded married couples.
Wisconsin Family Action sued last year in Dane County circuit court, arguing that the registries violated a 2006 amendment to the state constitution that bans gay marriage and any arrangement that is substantially similar.
Republican Attorney General J.B. Van Hollen refused to defend the lawsuit, saying he agreed the new law violated the state constitution. Then-Gov. Jim Doyle, a Democrat, hired Madison attorney Lester Pines to defend the state.
Walker, a Republican, replaced Doyle in January and fired Pines in March. On Friday, Walker filed a motion to stop defending the case.
“Governor Walker, in deference to the legal opinion of the attorney general that the domestic partner registry…is unconstitutional, does not believe the public interest requires a continued defense of this law,” says the brief, filed by Walker’s chief counsel, Brian Hagedorn.
Hagedorn told Dane County Circuit Judge Daniel Moeser that if he could not withdraw from the case, he would like to amend earlier filings to reflect Walker’s belief that the registries conflict with the state constitution.
The legal battle over Wisconsin’s domestic partnership registry would carry on even without the state’s participation in defending it. Gay rights advocates had previously joined the lawsuit, and they questioned the legality of Walker’s decision even as they vowed to sustain their own legal defense.
Even if Walker is allowed to withdraw from the case, the law would still be defended in court because gay rights group Fair Wisconsin intervened in the case last year.
Fair Wisconsin attorney Christopher Clark said the governor’s move raises legal questions.
“It’s not clear to me that a defendant in a lawsuit… can simply walk away from a lawsuit or withdraw,” he said.
Pines said Walker’s aides never gave him an explanation when they told him to stop working on the case. He said he was troubled by the latest court filing.
“The governor of this state has an obligation to defend laws he doesn’t like. And for that matter, so does the attorney general,” Pines said. “This shows an utter disrespect for the rule of law.”
Though Walker and the conservative organization fighting the registry law point to Wisconsin’s 2006 referendum banning gay marriage in the state, the legal precedent of the ban actually reinforces the case for defending the registry.
When faced with a case questioning the legal standing of the 2006 marriage ban, the Wisconsin Supreme Court upheld that law in a unanimous decision. However, contrary to the assertions from the Walker administration and the conservative group fighting the partnership law, that decision specifically did not affect the same-sex registries that were already in place at the time of the legal challenge to the gay marriage ban and the state supreme court’s ruling.
But the decision does not affect Wisconsin’s domestic partnership registry, which was signed into law by Gov. Jim Doyle last year. Same-sex couples who sign up receive a limited number of the same legal rights as spouses, including hospital visitation, inheritance, and medical leave rights.
Fair Wisconsin, the state’s largest gay rights group, said the decision underscored the importance of the registry in giving same-sex couples basic protections. The group said it was disappointed in the ruling and would work toward “a legislative repeal of this discriminatory amendment.”
Adding to the confusion over the Wisconsin situation is the announcement from President Obama in 2010 that granted visitation rights and rights to make decision about medical care to same-sex partners. That ruling affected all hospitals that receiving federal funding through programs like Medicare or Medicaid, essentially all major hospitals in the country.
The president’s ruling requires hospitals not to deny rights like visitation or the ability to make decisions about an impaired loved one’s care or treatment “based on sexual orientation.” The move was celebrated a s an important, though small, step in gay and lesbian rights. It is unclear how this federal-level directive will impact Gov. Walker’s attempt to give up on his own state’s law that protects the hospital rights of same-sex partners. Would Walker’s decision to flout the president’s order and try to kill Wisconsin’s same-sex registry even be legal?
So long as the Wisconsin gay rights group is committed to defending domestic partnership registries in their state, the case will go on. and the fact that Scott Walker decided to end government participation on behalf of the law could be a good thing.
As blogger Ed Brayton writes, it is “far better to have them defended by those who really believe in the law than to rely on a “half-hearted” defense from government lawyers.
I will say the same thing here that I said about the Prop 8 case, where the state of California refused to defend the law, and in the DOMA case: Those who disagree with those decisions should be happy that the government is refusing to defend those laws because it is far better to have them defended by those who really believe in the law than to have a half-hearted defense offered by those who aren’t committed to the cause. This Wisconsin law will be far better defended by a gay rights group than by a government lawyer with divided interests and beliefs.
I’m surprised at how clumsy this is politically. It’s pretty clear that the state of opinion these days is that even though Christian conservatives can still get riled over gay marriage (which seems to intrude upon their privilege), the general consensus has come around to gay people ought to be treated like people. This comes across as purely mean-spirited without any of the rhetorical lipstick used to make anti-marriage-equality sound reasonable.
You should be able to have anyone you want visit you in the hospital when you are dying. Gay straight married unmarried friend cousin milkman dentist college roommate. What does it matter?
What is it with the hate? How is anyone’s life improved by denying the sick and injured the company of people they love, and who love them? Why should a parent who rejected me and has not been a part of my life for years have more rights than a partner I love, if I am lying there dying? How does it make anyone’s life better, or save them from harm? All I see it doing is hurting people.
I just sigh when I read things like this. It’s laughable when he says that he’s trying to uphold the constitution, what he really means is that he’s trying to uphold his own personal beliefs, religious or otherwise and to me that is dangerous man. He’s a greedy, undereducated closed minded person that cheated his way into office. He’s swayed by the mighty dollar that large corp. are putting into his pocket for their benefit. He’s a dictator that’s trying to make everyone else live one way and his antics have proven that he’s someone who thinks all others are beneath him. He’s not about balancing the budget, that’s a joke.
Let some more LOG CABIN REPUBLICANS vote for their precious republican politicians.
Well, he already proved how much a buffoon he was with the union thing, this shouldn’t come as a surprise to anyone.