Friday, August 21, 2009

Maybe Van Hollen doesn't want to be AG anymore

I'm confused. Isn't the state Attorney General supposed to defend the state against lawsuits challenging state laws? Or are AGs allowed to pick and choose which laws they'd like to defend at any given time?

JB Van Hollen, Wisconsin's current AG, has just announced that he will not defend the state in a lawsuit filed by Wisconsin Family Action challenging the same-sex domestic partnership registry that was passed as part of this year's budget and went into effect on August 3.

This is interesting simply because of all the speculation over Van Hollen's ability to put his presumably non-partisan job over his politics (he's a registered Republican) that first arose when he initially ran for the office. The allegations again surfaced when he was pushing for what could have been massively disruptive voter registration checks during the fall elections.

It gets especially fascinating when taken alongside the federal Department of Justice's decision to defend DOMA against a lawsuit brought by a gay couple that wishes to be married. Though the DoJ has since issued a memo stating that they, along with the Obama Administration, believe DOMA to be discriminatory and in need of repeal, but that they're still obligated "to defend federal statutes when they are challenged in court. The Justice Department cannot pick and choose which federal laws it will defend based on any one administration's policy preferences."

(Of course, the fact that the DoJ has, historically, done just such picking and choosing seems to fly right over their heads here, but technically they're still correct that they're supposed to defend all federal laws--if they are looking to see it eventually overturned, though, they'll need to start using less inflammatory language in their legal briefs)

I'm of the personal opinion that defense of such blatantly discriminatory laws is not warranted, and that our national charter of equality for all should always trump deeply flawed legislation. But I can also understand if, legally, the DoJ is supposed to defend them all regardless.

So then I'm particularly impressed at Van Hollen's apparent dismissal of his own job description. He was elected by the people of Wisconsin to uphold the state's laws, no? Of course, his public argument seeks to get around all that:
"My decision isn’t based on a policy disagreement," he said. " 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."
What if the amendment is illegal, though? There's also a lawsuit currently pending that challenges the legality of the law because it allegedly violates the rule that you can't have a single vote for two or more issues. Wisconsin's marriage amendment does, in fact, appear to violate that rule by including the ban on gay marriage as well as a ban on "anything substantially similar" to marriage.

Staunch amendment backers like Julaine Appling of WFA were careful to vehemently deny that the law would effect things like domestic partnerships, but that's exactly what they're now trying to do. And it looks like Van Hollen is on their side.

All of this hubbub could make for a great case when the lawsuit challenging the legality of the amendment goes to court. Clearly, it was talking about more than one thing, otherwise Van Hollen and WFA wouldn't be up in arms about the domestic partnership registry (which, it's important to remember, only affords 40 of the 200 rights married heterosexual couples get).

I still have to wonder, though - can we recall Van Hollen for dereliction of duty while we're at it?


illusory tenant said...

"Can we recall Van Hollen for dereliction of duty while we're at it?"

Unlikely, but since the Wisconsin Supreme Court held that the AG has zero authority to challenge the constitutionality of State statutes, his personal opinion of Ms. Appling's petition is every bit as valid and persuasive as any of the Republican voters to whom he's quite obviously appealing.

Anonymous said...

Governor DOyle refused to represent the state in challenges - many, many times for no other reason than he did not want to -
He cost the state hundreds of thousands in additional expenses as the state had to hire ourtside attorneys.
This is the first time A.G. Van Hollen has refused to defend an action which was signed into law through the budget process AD he had a good reason - it conflicts with the consitution!

The Lost Albatross