On Wisconsin

When I wrote a perhaps overly optimistic piece about public officials refusing to defend marriage discrimination laws in court last Sunday, commenter democommie wisely corrected my math:

While I don’t think that there are a only a “...remaining few who are on the wrong side of history”, I share your feeling that they see themselves as isolated.

Point taken. The examples I cited – Pres. Obama’s reversal on the Defense of Marriage Act, California’s abandoning its defense of Proposition 8, and the recent announcement by Illinois’ Attorney General that she supports two lawsuits challenging our state’s ban on same-sex marriage – are important, for sure, and probably indicative of a wider trend. But they’re not overwhelming proof that marriage segregation is dead.

That point that, unfortunately, is underscored by today’s recall election of Wisconsin Gov. Scott Walker (R). Via the wonderful Lizz Winstead, Jezebel.com reports that Gov. Walker has done a reverse-Obama, so to speak, and is refusing to defend his state’s domestic partner registry in court:

Walker wants the state to stop defending its domestic partner registry on the grounds that it isn’t constitutional. Some background from the Associated Press:

Members of the conservative group Wisconsin Family Action filed a lawsuit last summer arguing the registry violates the state’s constitutional ban on gay marriage. Former Gov. Jim Doyle, a Democrat who proposed the registry as a means of granting same-sex couples more legal rights, chose to defend the measure and had filed a motion asking Dane County Circuit Judge Daniel Moeser for summary judgment upholding it. Walker, a Republican, inherited the case from Doyle when he took office in January.

Last week Walker filed legal documents saying the registry shouldn’t be defended because it mimics marriage, and is thus unconstitutional. The list, which included about 1,330 couples at the end of 2009, allows same-sex couples the right to visit each other in hospitals, make end-of-life decisions, and inherit each other’s property — just like married couples! (Minus a slew of other rights.)

I suppose, in Gov. Walker’s defense, one could argue that he’s simply following the lead of Pres. Obama, California Gov. Jerry Brown, and Illinois Attorney General Lisa Madigan, electing to refuse to defend a law that he believes to be constitutionally suspect. After all, he took an oath to uphold and defend the Constitution, just like every other public official. But as the Obama Administration recognized when it reversed course on DOMA, the executive branch of government ordinarily is duty-bound to defend legislation regardless of the chief executive’s personal political beliefs, and so it’s only in the rarest cases – cases where the duty to uphold the constitution overrides the duty to defend duly enacted laws – that the executive branch should refuse to do so.

In cases involving DOMA, Prop 8, and Illinois’ ban on same-sex marriage, the public officials who refuse to defend those laws are taking a fairly courageous position, and one, I think, that’s consistent with our evolving constitutional standards of due process and equal protection. (See related posts here and here.) In other words, the President and these other public officials are taking a difficult stand in order to vindicate a genuinely important constitutional principle – that federal and state governments should not be permitted to engage in invidious discrimination against a traditionally disadvantaged group. In Walker’s case, however, his argument that the state’s domestic partnership registry violates Wisconsin’s constitutional ban on same-sex marriage is petty and mean-spirited: Domestic partnerships clearly are not full legal marriages, but they do provide certain humane benefits like the right to be there when the love of your life is in the hospital – benefits that will be lost if Gov. Walker gets his way. What possible constitutional value is vindicated by taking away such benefits? None whatsoever.

In the interest of full disclosure (and at the risk of destroying my liberal cred) I have to say I’m ambivalent about recall elections as a matter of general principle. Not that I disagree with Chicago’s own Jane Addams, who once wrote, “The only cure for the ills of democracy is more democracy,” but recall elections are not altogether unlike impeachment proceedings in which the losing party, unhappy with the results of the last democratic election, looks for any possible excuse to undo that election and try again. It’s just a do-over, as we said when we were kids, and I’m not sure voter remorse is a reason to scrap the outcome of an election just a few months into an elected official’s term in office.

But Wisconsin law permits recalls, and only a fool would stay home on general principles when there’s a chance to replace an individual who’s as petty as Scott Walker. So, yeah, go out there and vote, Wisconsin. You can do much better than a governor who uses the power of his office to promote discrimination.

And, in any event, this particular recall election apparently makes George Will cry, which is reason enough to want to see Scott Walker lose.