After U.S. Attorney General Eric Holder said that state attorney generals need not defend state laws banning same-sex marriage, Wisconsin attorney general J.B. Van Hollen responded by saying that state constitutional amendments must be defended: “If there’s one clear-cut job I have, it’s to defend my constitution.” Which is either another way of saying that Van Hollen doesn’t consider Wisconsin’s same-sex marriage ban to be discriminatory or that he has no choice but to defend an unjust law. (Van Hollen has previously argued that the state’s ban on same-sex marriage does not violate either the state or federal constitution.) Either way, I beg to differ.
Does Wisconsin’s constitution forbid the state’s attorney general from washing his/her hands of a bad amendment? Well, the constitution does say that “The attorney general does not have the authority to challenge the constitutionality of statutes.” As for amendments, and simply not defending them, the constitution does not address what the attorney general can do.
But should anyone, even the attorney general, obey and defend an unjust law? I would argue that the same-sex marriage ban is unjust because it discriminates against gays and lesbians who wish to form a legal (in the eyes of the state) union. There may be religious objections to same-sex marriage, but that is not the concern of the state, thanks to the U.S. Constitution’s essential separation of church and state. Wisconsin’s constitution, furthermore, asserts that “all people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness.” Why should the liberty and happiness of legal marriage be denied to the homosexual community in Wisconsin?
Some claim same-sex parenting harms children, but a recent major report from the American Academy of Pediatrics proves it isn’t so. No state, as far as I know, is on record as claiming that having two parents of the same gender is bad for a child. (And if any state does, it’s wrong.) Nor does approving same-sex marriage harm heterosexual marriage, for why would it? So Wisconsin’s constitutional amendment defining marriage as possible only between a man and a woman is clearly a violation of both the Wisconsin and U.S. constitutions and an invasion of religious doctrine into state law; the amendment serves no purpose other than to discriminate based on sexual orientation.
Gov. Scott Walker has recently said, “I haven’t heard a significant movement” in favor of same-sex marriage since the amendment was passed by state voters in 2006. This is typical of Walker’s tone-deafness, for a recent Marquette University poll found that 53% of Wisconsinites now support same-sex marriage. And the state is currently being sued for it’s amendment by the ACLU and four same-sex couples.
So what can and should AG Van Hollen do? He should practice a little civil disobedience and refuse to defend a blatantly unjust law. Recall what Henry David Thoreau had to say on the subject of good government:
“But a government in which the majority rule in all cases cannot be based on justice, even as far as men understand it. Can there not be a government in which majorities do not virtually decide right and wrong, but conscience? — in which majorities decide only those questions to which the rule of expediency is applicable? Must the citizen ever for a moment, or in the least degree, resign his conscience to the legislator? Why has every man a conscience, then?”
The gaining of civil rights for American women and minorities has not been accomplished without some form of nonviolent civil disobedience. Majorities can be wrong, and what Wisconsin voters believed in 2006 they seem now to no longer believe. A majority, according to the Marquette poll, now approves of same-sex marriage. Van Hollen can do the right thing now, or he can wait until some court does the right thing and overturns our discriminatory amendment. But he should at least explain why he thinks this constitutional amendment is worth defending. “It’s my job” has never been a valid moral defense.
UPDATE (today): A federal court in Texas just struck down a very similar state amendment banning same-sex marriage. It seems the Texas amendment violates the U.S. Constitution. Of course it does.
For the record, Democratic gubernatorial candidate Mary Burke supports same-sex marriage and the federal lawsuit in Wisconsin against the current marriage amendment.