MADISON (WKOW) -- Wisconsin Attorney General J.B. Van Hollen announced Friday that he will not defend the state during its legal challenge of the newly formed domestic partnership registries.
The Wisconsin Supreme Court case (Appling, et al. v. Doyle, et al., 2009AP001860-OA) was brought by the conservative group Wisconsin Family Council, which is challenging that the registries violate the state's constitutional amendment banning same-sex marriage, or anything similar.
Voters approved the amendment through a statewide referendum in 2006. Lawmakers approved the registries, which include about one fourth of the legal benefits as those definded for traditional marriage, earlier this year as part of the current biennial budget. Since the county-run registries took effect earlier this month, about 400 same-sex couples in Wisconsin have signed up for them.
In his statement on Friday, Van Hollen wrote:
"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. "
Rep. Mark Pocan (D-Madison), an openly gay member of the legislature, challenged Van Hollen's rationale and pointed to other analysis of the constitutionality of the partnership registries.
"From Wisconsin legislative council, which is completely non-partisan, to the governor's attornies, to everybody in between, has looked at this and said it's clearly legal."
"He made a political decision to help his political base," Pocan said.
The liberal advocacy group One Wisconsin Now cited Vallen Hollen 2005 campaign remarks, which acknowledged the government-sanctioned provision of marriage-type benefits to unmarried partners would not be inconsistent with a ban on gay marriage.
State justice department officials said Van Hollen drew a distinction between providing benefits through a negotiated agreement with a government body, and creating a legal status with no apparent difference from the institution of marriage, in refusing to defend registries.
In 1996, then-attorney general Jim Doyle refused to defend the state's Good Friday employee holiday against a federal court challenge. Governor Tommy Thompson hired private, special counsel, but the law was struck down.
A number of state officials, including Governor Doyle and Secretary of Health Services Karen Timberlake, must file a response to the case by the end of the month.
With Van Hollen declinging to represent the state, the governor will be allowed to appoint special counsel.
In a statement, Doyle said Wisconsin domestic partner registries have been evaluated as legally sound. "Clearly this is defensible."