The question now is whether a governor ought to defend a law that defies the constitution. “If the governor determines that defending a law would be contrary to the state’s constitution, he cannot order the defense of the law because of his oath to support the Wisconsin Constitution,” Walker’s attorney told the court.
It’s no different than if a past legislature installed a law to set up a state church, for instance, or segregate schools. A governor ought not and cannot defend such stuff. This is no different, since voters specifically, constitutionally banned what Doyle launched.
The only route left for defenders of redefining marriage is the sympathy play. One line, for instance, has it that Doyle’s law was all about letting gay couples visit each other in hospitals. Nonsense, of course: A medical power of attorney gives whomever you designate – offspring, friend or, yes, gay life-partner – not only the ability to visit you in the hospital but to make decisions on your behalf. It’s a normal part of making a will, which any couple of any sexual preference ought to have anyhow.
Doyle wasn’t aiming to let couples visit each other in hospitals. Who visits whom is a private matter, and there’s little evidence any Wisconsin hospital made it anything but. As with the drive for gay “marriage,” Doyle’s registry was all about public status – granting a special public recognition to a particular kind of unmarried couple so that everyone else in society would have to treat them in every important way as if they were married.
Voters already told the government not to make such demands on society. Doyle ignored them.
Walker, to his credit, is listening.
Stupid Things People Say About Conservatives
Unlike the Reporter’s distinguished clientele, Jay Morris’s response to my civil unions editorial manages to remain calm and address things I’ve actually written. Still, our Harvey Milk fan’s attempts to show I am “disgruntled” and “didn’t really do any research” fall flat:
Unfortunately, Mr. Freiburger apparently has not reviewed what is required in Wisconsin to obtain a “marriage license,” including the facts that: (a) once applied for, the license only has a 6 day waiting period before being effective; and (b) that only one person need reside in Wisconsin for at least 30 days. Thus, the “scant” requirement to obtain Domestic Partnership benefits in Wisconsin far exceeds the requirements to obtain a marriage license and more benefits than provided by the Domestic Partnership laws.
I fail to see the relevance here. I’m not claiming these new civil unions are easier or harder to qualify for than civil marriage; I’m saying exactly what my original point sounded like: it will be easy to scam these civil unions. Dane County Clerk Bob Ohlsen, while not predicting fraud, recently said, “even for those who already get benefits for their partner through their employer, there is a huge advantage to applying to the registry.” You could say that people can scam civil marriage, too, but the reality is that it is much more common for non-romantically-involved people of the same sex to live together than those of opposite sexes. In any event, I sincerely apologize to Mr. Morris for not devoting a larger share of my 600-word limit to a side issue.
Even when debates with liberals aren’t vicious and juvenile, they can carry a distinct air of surrealism—Mr. Morris strangely claims that my comments about “the so-called rights gay couples are allegedly denied” show that I “neglected to review Wisconsin law at all,” since the marriage amendment “includes a ban on any relationship between same-sex couples that is ‘similar to’ marriage.” Perhaps our friend shouldn’t be so quick to cast stones over insufficient research, inasmuch as he apparently didn’t even read the piece he’s rebutting in full—in which I discuss the “2006 Marriage Protection Amendment, which prohibits the state from recognizing ‘a legal status identical or substantially similar to that of marriage for unmarried individuals.’”
Mr. Morris attempts to prove the amendment threatens gays by quoting Wisconsin’s former (disgraced) Attorney General Peg Lautenschlager. What he doesn’t mention: after the election, the AG was singing a different tune from what she said as a Democrat candidate:
In one of her last official acts, outgoing Attorney General Peg Lautenschlager has declared that Wisconsin’s recently enacted constitutional ban on same-sex marriage does not prohibit public or private employers from providing domestic partner benefits. In a six-page opinion released Wednesday, Lautenschlager also told Madison City Attorney Michael May that the constitutional amendment does not strike down anti-discrimination protections for domestic partners. Lautenschlager wrote that “it can reasonably be inferred” from the language of the amendment “that neither the Legislature nor the people intended to invalidate domestic partnerships when they adopted this provision.”
Also intolerable to our friend is the fact that gay couples seeking to arrange benefits themselves via wills and power of attorney pay much more than the cost of a marriage license. First, I still maintain that, while full replication of everything civil marriage offers may be impossible, gay couples still have access to far more than the gay lobby, such as the lying charlatans of Fair Wisconsin, would have you believe.
Second, I again reiterate my point that many of these benefits “were created to aid couples raising children on just one parent’s income, and are thus irrelevant to gay couples (as well as to dual-income straight couples).” To be completely honest, I think it would be interesting to do a full review of civil marriage in America and reassess every benefit, and see which should be preserved, which should be changed to apply only to single-income couples or couples with children, and which should be done away with entirely. So I hope you’ll excuse me for not feeling guilty for denying gay couples some provisions I don’t necessarily believe straight couples need either.
Third, as I’ve also said time and time again, it’s certainly possible to change laws and streamline processes for achieving these things in amendment-compatible ways. A few years back, Focus on the Family’s Dr. James Dobson endorsed just such a measure in Colorado. I note that Dobson hasn’t received much goodwill from the gay Left for his efforts.
Jay has one last complaint about my “so-called article” (what does that even mean? Guess I spoke too soon about maturity…): “the rule of law is always up for debate – particularly when the law violates other laws, like equal protection clauses of the primary source, The United States Constitution.”
I’m still trying to decide whether or not this is a weak attempt to dodge my point, or if Jay is really this obtuse. His so-called analysis (see how dumb that sounds?) appears to confuse “laws” with the principle of “the rule of law.” The former means any given law on the books, be it a constitutional provision, act of a legislature, or duly-enacted referendum. Of course these are “always up for debate;” I never suggested otherwise. The latter is the principle that the process by which we make and change laws is something to be respected, that we (to quote myself again, since Jay apparently missed it the first time) “cannot pick and choose which of its provisions to enforce and which to violate, no matter what they may personally think about them.” Don’t like a law? Get it repealed. But as an American, living under the protection of the United States Constitution and the Constitution of the State of Wisconsin, you have no moral right to simply ignore what it says. That goes double for those in public office, like Governor Jim Doyle, who swear [PDF link] “to support the constitution of the United States and the constitution of the state of Wisconsin, and faithfully to discharge the duties of their respective offices to the best of their ability.”
No matter how much I despise abortion and wish to see it banned, I don’t want such a ban to come via the Supreme Court. Because I respect and value the rule of law.
However draconian limitations on how close to Planned Parenthoods pro-lifers can protest may be, you won’t see me violate them. Because I respect and value the rule of law.
Regardless of what I may think of any given tax—because I think it unjust, excessive, or I disapprove of the purpose for which it is raising funds—I would never dodge it. Because I respect and value the rule of law.
Jay Morris gave it the good old college try, and delivered a response a cut above most of my critics. But as we see, that’s still not saying much.
Undermining Constitutionalism in the Name of Fairness
Thanks to false stereotypes about social conservatives peddled by so-called agents of “tolerance,” I’m sure many liberals expect us to explode into flames over the insertion of same-sex domestic partnerships into the state budget, as if bigotry were our motivation. Sadly, they’ll have to settle for reasoned argument and serious concerns instead.
With its requirement that participants live together for a scant 30 days to qualify, the measure is begging to be scammed by any two people sharing a residence, not just gay couples. But that’s not why Wisconsin should be offended.
Many of the so-called rights gay couples are allegedly denied, such as hospital visitation and power-of-attorney related issues, are either already available to gays, easily achievable without creating new government relationship statuses, or were created to aid couples raising children on just one parent’s income, and are thus irrelevant to gay couples (as well as to dual-income straight couples). But that’s not why Wisconsin should be offended, either.
Wisconsin should be offended because this action was unconstitutional, and the Democratic lawmakers and governor who enacted it, knew it. It violates the democratically-enacted 2006 Marriage Protection Amendment, which prohibits the state from recognizing “a legal status identical or substantially similar to that of marriage for unmarried individuals” (the WI Constitution has no “Unless We Really, Really Want To” clause).
Governor Jim Doyle and Democrat apologists claim that, since these new unions have only 43 of civil marriage’s 200-plus benefits, they are not “substantially” similar to marriage and thus constitutional. Nevertheless, every politician in Madison knows the clear intent of the law—to keep Wisconsin from creating same-sex marriage by another name.
There are many important considerations in the debate over same-sex marriage and civil unions: equality, the best interests of children, religious liberty, and more. Exploring them could exhaust many Reporter pages, but one principle should never be up for debate in a constitutional republic like America: the rule of law.
Free societies have constitutions to limit what governments can do to their people. We have an amendment process for when we decide our constitution needs to be changed, but unless and until it is amended, a constitution is the law of the land. The entire concept of a constitution is that government officials cannot pick and choose which of its provisions to enforce and which to violate, no matter what they may personally think about them.
No matter how unfair or oppressive you believe the marriage amendment to be, I ask you to heed this warning: if you allow our leaders to get away with ignoring the constitution on one issue, you are, in effect, endorsing the principle that any constitutional provision may be ignored if a leader claims he has a good enough reason. That’s a terrifying prospect, and precisely what our Founding Fathers sought to prevent.
Abraham Lincoln famously remarked that “reverence for the laws” should “become the political religion of the nation,” a basic principle that should unite us all and preserve our liberties. Jim Doyle and the lawmakers in Madison who allowed this to pass have made clear how little regard they have for the rule of law, and have demonstrated they are unfit to hold the offices with which we have entrusted them.