Today Attorney General J.B. Van Hollen announced he will not be defending the state against Wisconsin Family Action’s (WFA) legal challenge to the statewide, same-sex domestic partnership registry in Appling v. Doyle. Van Hollen’s statement leaves no question as to his opinion of the constitutionality of the domestic partnership registry.
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…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.
In his statement, the AG agrees with Wisconsin Family Action’s arguments against the registry, that the constitutionality of the domestic partnership registry hinges on the “nature of the ‘legal status’ of domestic partnerships and whether that status is ‘substantially similar to marriage.'” Because Van Hollen believes the legal status of the registry is, in fact, substantially similar to that of marriage and violates the state constitution, which he is sworn to uphold, he has declined to defend the registry.
According to Wisconsin law, it’s now up to the governor to appoint special counsel to represent him in the case.
As of this week, the Supreme Court has not officially accepted WFA’s petition for original action, but the Court has asked the state to file a response to WFA’s petition by August 31st, outlining the “relevant facts.”