The Wisconsin Attorney General, J. B. Van Hollen, has stated that he will not defend the legislatures domestic partnership law in filings seeking to overturn it. The republican Attorney General feels the legislation, which provides hospital visitation and inheritance protections to same-sex couples, is a violation of the Wisconsin Constitution which holds that no relationship between same-sex couples can be recognized in Wisconsin which is “similar to” marriage.
I’ve often argued that language such as that in Wisconsin’s Constitution is overly broad and can result in the denial of benefits under estate law and medical decision. For more on that, please read this post and this post. But that isn’t the issue here.
The problem is that the Wisconsin Attorney General is violating his responsibility to defend the legislation enacted by the legislature against legal challenges and; thus, he should be fired.
Perhaps the real issue is that the Obama Administration, in spite of its claims that it must defend such legislation, doesn’t really have to do so. If the Wisconsin attorney general can choose not to defend the state in lawsuits filed against it, shouldn’t the Obama Administration be able to make that same choice?
But instead the Obama Administration has chosen to defend the Defense of Marriage Act, a piece of legislation Obama himself has called unconstitutional. Why? They claim it is because the Administration (by way of the U.S. Attorney General’s office) must defend enacted legislation from legal challenges.