Wisconsin Attorney General J.B. Van Hollen vigorously sought — and obtained — a stay of U.S. District Judge Barbara Crabb’s decision finding the state’s gay marriage ban unconstitutional. A joyous week in Wisconsin that saw more than 550 same-sex couples marry came to an abrupt halt, and Van Hollen asked the 7th Circuit Court of Appeals to overturn Crabb’s decision.
Van Hollen said he was compelled to act in order to comply with his sworn constitutional duty to uphold state law — in this case a 2006 amendment to the Wisconsin Constitution barring same-sex marriage or anything “substantially similar.”
But Van Hollen has discretion over which laws to defend. He refused to defend the 2009 law that created a domestic partner registry for same-sex couples in Wisconsin. His communications director told WiG that’s because he believes the partner registry law violates the state’s 2006 constitutional amendment banning any status “substantially similar” to marriage, just as he believes Crabb’s ruling violates the amendment’s injunction against same-sex marriage itself.
The tide of history, which invariably flows toward freedom, should have led him to a different conclusion, as the editorial pages of newspapers around the state have pointed out. At the Attorneys General Winter Meeting in February, Van Hollen heard U.S. Attorney General Eric Holder stress that state attorneys general are not obliged to defend discriminatory laws. Attorneys general in Virginia, Pennsylvania, California, Illinois, Nevada and Oregon have declined to defend their state’s gay marriage bans, and New Mexico Attorney General Gary King has challenged laws prohibiting same-sex marriage in his state.
Van Hollen might also have taken a clue from the U.S. Supreme Court’s decision in Windsor and the fact that since June 2013, marriage-equality supporters have racked up 21 consecutive legal victories — and zero losses — in federal and state courthouses. The first federal appeal court decision on the issue, which came out on June 25, also found against the constitutionality of same-sex marriage bans.
Although Wisconsinites voted eight years ago to deny same-sex couples the right to marry, there’s been a sea change in public opinion on the issue: Fifty-nine percent of Wisconsinites voted against marriage equality in 2006; by contrast, a Marquette University poll in May found only 37 percent of the state’s voters now oppose it, while 55 percent favor same-sex marriage. Even the most zealous same-sex marriage opponents now agree that its acceptance is inevitable.
When Van Hollen appealed Crabb’s decision, there were already several cases far ahead of his in the federal appeals court pipeline. There are so many, in fact, that the 6th Circuit Court of Appeals is scheduled to hear cases from four states — Ohio, Michigan, Kentucky and Tennessee — in a single session on Aug. 6.
The money Van Hollen is spending to deny same-sex couples in Wisconsin the right to marry could have been saved pending the outcome of those cases or a decision from the U.S. Supreme Court. Instead, taxpaying Wisconsin gays and lesbians are paying legal fees for their own persecution.
Van Hollen is often mentioned as a potential candidate for higher office. It’s impossible to win a GOP primary race in Wisconsin without the religious right’s support. Given the undeniable trajectory toward marriage equality, his choices on this issue seem based on ambition or bias rather than a sense of duty.