Wisconsin Corrupt Atty General Reduces Himself to Partisan Troll

"After seeing the expressions of joy on the faces of so many newly wedded couples featured in media reports, I find it difficult to impose a stay on the event that is responsible for eliciting that emotion, even if the stay is only temporary. Same-sex couples have waited many years to receive equal treatment under the law, so it is understandable that they do not want to wait any longer. However, a federal district court is required to follow the guidance provided by the Supreme Court." (emphasis added)

So reads U.S. District Judge Barbara Crabb's ruling in Wolf v. Walker, declaring Wisconsin's ban on  against marriages between persons solely on the basis of sex or gender to be unconstitutional.

Judge Crabb's language on implementing a temporary stay recognizes federal court decisions across the nation have found for challenges against same-sex marriage bans on the merits, and her decision against bans affirms that courts protect individual rights against incursions by state governments.

Crabb notes the need for a decisive appellate ruling by the U.S. Supreme Court as a guide for lower courts and that the stay is merely procedural until such a ruling is made (or the failure of Van Hollen to appeal her declaration and decision to the Court of Appeals for the Seventh Circuit).

Crabb cites a host of precedents in support of her opinion, including Loving v. Virginia (1967), which holds that state bans against marriages between persons solely on the basis of racial classifications violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment.

In response, Van Hollen has made a host of ill-considered, even infantile public statements during litigation, going so low as to threaten to criminally convict county clerks, before backing away from his statement in the face of widespread ridicule. "Who is Van Hollen kidding? Does he really think that county clerks should be prosecuted for doing their jobs after a federal judge threw out the state's ​constitutional ​ban on same-sex marriage? It sounds like the last desperate gasp of a losing argument," reads a blistering editorial from the conservative editorial page of the Milwaukee Journal-Sentinel (June 13, 2014).

So, Van Hollen, ever the partisan and corrupt attorney general, plays the partisan troll again early last weekend, spinning Judge Crabb's procedural and temporary stay of her own ruling as a victory for anti-marriage equity forces.

Reads Van Hollen's statement in part: "I am very pleased that Judge Crabb has followed the lead of courts across the country, including the United States Supreme Court, and fully stayed her ruling. By staying this ruling, she has confirmed that Wisconsin’s law regarding same-sex marriage remains in full force and effect."

Van Hollen's public statements are purely political intended to incite more bigotry and made in support of the current composition of the GOP's collection of hate groups, including the hierarchy of the Catholic Church and other religious right groups.

Van Hollen knows perfectly well state bans and federal court ruling finding against these bans simply need to be litigated in federal appellate court following last year's Supreme Court ruling in United States v. Windsor—holding the federal Defense of Marriage Act is an unconstitutional violation and deprivation of liberty.

Van Hollen's refusal to publicly address the logic of judicial precedents holding states cannot violate the constitutional rights of individuals in the realm of marriage demonstrates anew the Wisconsin attorney general remains little more than a tool of narrow ideological interests against the rule of law and the liberty interest of the individual American citizen.

Marriage Equity Final Brief Filed

William C. McConkey filed his final brief with the Wisconsin Supreme Court last Friday in his bid to overturn Wisconsin's gay marriage ban.

McConkey's argues in William C. McConkey v. J. B. Van Hollen that the anti-gay marriage referendum resulting in the Wisconsin constitutional amendment banning same-sex marriage should be overturned because of ambiguous language in the formulation of the referendum.

The 2005 referendum question submitted to the voters on the marriage amendment is composed of two questions posed in the single referendum.

McConkey argues that this violates the "single subject" rule in Article XII, section 1 of the Wisconsin Constitution mandating that people may vote for or against more than one proposed amendment separately.

In the reply brief filed Friday, McConkey writes:

Wisconsin voters had a right to expect that a crucial issue like the potential rights and obligations of unmarried individuals who are in a relationship that is not marriage would be discussed and considered fully. Instead, it was coupled with a definition of marriage that was emotionally compelling and presented to the voters in a logrolled resolution that stymied debate and restricted the voters’ right to directly discuss and then address in the voting booth all of the issues before them.

The language of the 2005 referendum reads:

Shall section 13 of article XIII of the constitution be created to provide that only a marriage between one man and one woman shall be valid or recognized as a marriage in this state and that a legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state? [Emphasis added]

The Wisconsin Department of Justice is defending the anti-gay marriage amendment.

Oral arguments are scheduled for November 3.

Friend of the Court briefs, amicus curiae, will likely also be filed with the Court.

See also:
- DOJ Files Anti-Gay Marriage Brief
- Wisconsin Gay Marriage Ban May Go Down
- Objection, Compound Referendum
- Brief Looks to Doom Wisconsin Gay Marriage Ban

DOJ Files Anti-Gay Marriage Brief

The Wisconsin Dept of Justice (DOJ) filed its response brief yesterday to a constitutional challenge to Wisconsin’s same-sex marriage ban approved in a 2006 statewide referendum composed of two questions being considered by the Wisconsin Supreme Court in a legal challenge posed by civil rights advocates.

The case, William C. McConkey v. J. B. Van Hollen, challenges the anti-gay marriage referendum on several constitutional grounds, arguing that the state’s resulting constitutional amendment should be overturned.

Constitutional Amendment Referendum

The language of the 2006 referendum reads:

Shall section 13 of article XIII of the constitution be created to provide that only a marriage between one man and one woman shall be valid or recognized as a marriage in this state and that a legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state? [Emphasis added]

Single Purpose

One of the issues addressed in the case is the constitutionality of the referendum formulation that poses more than one proposition in a single ballot question that confuses Wisconsin voters.

The related question of how to determine whether such compound-question referenda serve the same general purpose and comprise the same subject matter in accordance with some case law, will also be considered by the Court.

The DOJ argues that the "general purpose of the amendment was to preserve and protect the unique and historical status of traditional marriage as a union between one man and one woman,” echoing the ruling of Dane County Circuit Judge Richard Niess, who upheld the amendment last year, saying in part that the two propositions in the referendum are “two sides of the same coin.”

So how does the Court go about determining if two propositions serve the same general purpose?

McConkey argues and the Court of Appeals April 2009 decision agrees vis a vis Judge Niess, that the “proper legal standard and methodology” for determining a general purpose is unclear from existing case law.

The DOJ brief argues that existing case law accords deference to the legislature’s formulation of referendum questions on proposed constitutional amendments.

Both the DOJ and McConkey briefs suggest judicial standards of ascertaining legislative intent of referendum questions.

Single Subject

The compound formulation of a question promotes ambiguity rendering the electorate’s ballot preference unknown because voters are only able to get to cast one yes or no to the two different questions in clear violation of the " ? Article XII, section 1 of the Wisconsin Constitution.

The DOJ does not see it that way.

Reads the DOJ brief:

The two parts of the ballot question presented to voters in November 2006 related to and furthered the general purpose of the amendment: to preserve and protect the unique and historical status of traditional marriage as a union of one man and one woman. McConkey’s strained effort to conceptually dissociate the two propositions should be rejected.

One wonders how the same general purpose of two parts of the ballot question can be served [voted upon] and ascertained, when a voter might easily be in favor of the first question but not the second question of the referendum.

The strained effort in this matter is imputing a unitary coherence onto the religious right's compound formulation. Whatever the GOP and the religious right were thinking, they did not communicate their propositions clearly to Wisconsin voters.

See also:

- Objection, Compound Referendum
- Brief Looks to Doom Wisconsin Gay Marriage Ban

Brief Looks to Doom Wisconsin Gay Marriage Ban

Update: McConkey brief is now available online.

Wisconsin's gay marriage ban resolutions were shepherded through the 2003-05 legislative sessions with exclusive Republican support.

But the gay marriage referendum was written so broadly and ambiguously that the resulting constitutional amendment will likely be struck down in the William C. McConkey v. J. B. Van Hollen (Appeal Number 2008AP001868) Wisconsin Supreme court case.

Reading the McConkey brief filed yesterday is like a breath of fresh air; nothing quite like rigorous logic defeating cynical bigotry.

One big problem with the 2006 referendum is that its formulation is a compound question that asks for one response to two different propositions in the same referendum question.

This compound formulation promotes ambiguity rendering the electorate’s ballot preference unknown because voters were only able to get to cast one yes or no to the two different questions in clear violation of the "single-subject" rule set forth in Article XII, section 1 of the Wisconsin Constitution.

Divining a Purpose

Dane County Circuit Judge Richard Niess, who upheld the amendment last year, saying the two clauses in the referendum question were ‘two sides of the same coin’ and properly decided with one vote will likely regret his ill-informed decision that invented a legislative purpose for the two propositons.

Judge Niess said that the legislative purpose of the amendment is the “preservation and protection of the unique and historical status of traditional marriage,” a foolish (and astoundingly ignorant) statement in the face of the dynamic, evolving history of marriage and a purpose he imputes to the legislature with no evidence.

Reads the McConkey brief on this point:

Were the Court to base its determination of a proposed amendment’s purpose on something other than the one found in the Enrolled Joint Resolutions, for instance, by determining purpose from statements made by those participating in the public debate surrounding the amendment, it would be deviating from the determination of purpose already made by the Legislature and legislating from the bench. That is what the circuit court did, when it found that the purpose of the amendment was 'the preservation and protection of the unique and historical status of traditional marriage.' (R. 1, A-App. 7), 2003 J.R. 29 and 2005 J.R. 30 say nothing about preservation, protection, uniqueness, traditional marriage or historical status. [Emphasis added]

Judge Niess can't just make stuff up; he's a judge.

Single Subject

Reads the McConkey brief filed yesterday on the compound question, single subject issue:

The circuit court concluded that the two propositions were ‘two sides of the same coin.’ That is incorrect. Had the second portion of the ballot question merely proposed that ‘marriage between any other individuals shall not be allowed, recognized or valid in this state,’ the circuit court’s observation would be true. But the second proposition was not so limited. It was not the obverse [logical counterpart] of the first.

Rather, the first proposition stated whose marriages would be recognized as valid by the state, and the second proposition limited the legislature’s power to provide to unmarried people a status that is ‘identical or substantially similar’ to marriage. That is a far different purpose than the first.

The Legislature erred by trying to accomplish two separate and distinct things through one ballot question. By having those two distinct purposes, the ballot question violated the single general purpose prong of the single amendment requirement set out in Article XII, Section 1 of the Wisconsin Constitution. Having done so, Article XIII, Section 13 is unconstitutional.

The Attorney General’s reply brief is due on August 13th.

Wisconsin Marriage Ban Will Go

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And, but for the interference with his arrangement, there would be no cause for such marriage. The fact that he separated the races shows that he did not intend for the races to mix.

- Judge's opinion defending state statute banning marriage between difference races, overturned in Loving v. Virginia (1967).

Sooner we hope but Wisconsin's ban on gay marriage will go the way of the state bans against blacks marrying whites.

Battles over banning gay marriage will mark the political culture this Summer-Fall with predictably dumbed-down news coverage carefully crafted not to offend bigots.

Several legal cases are proceeding.

In Wisconsin William C. McConkey v. J. B. Van Hollen challenges the gay marriage ban on a question of ambiguity of the GOP referendum that brought this ban into the Wisconsin constitution.

And make no mistake the gay marriage ban is a Republican project, supported by the religious right advancing their god-given "Judeo Christian principles and values."

Evaluating the arguments for banning gay marriage, honest observers agree the 'it's what I believe' statement doesn't count as a serious defense of a position, though that's the justification most often heard.

The plain truth is bigotry is behind the effort to ban gay marriage.

Many people and especially the Republican Party [at least those Republicans not yet out] simply do not like LGBT people, explaining their belief that raging hell fires await gays who will be punished by god.

Ignorance and delusion, that's the staple of the Republican Party.

In one federal case, to once and for all rid America of the lawful unequal treatment of gays under the law, the Perry, Stier, Katami and Zarrillo v. Schwarzenegger suit seeks a ruling guaranteeing gay Americans equal protection, due process and privacy rights just like every other American.

So, it's worth noting the God-wants-it-that-way argument was also advanced by bigots 42 years ago in the landmark Loving v. Virginia case overturning state statutes banning marriage between people of different races.

The same Equal Protection and Due Process argument in Loving v. Virginia are made in the Perry, Stier, Katami and Zarrillo v. Schwarzenegger brief.

And Wisconsin GOP's gay marriage ban efforts reflect the same ludicrous sentiments against gay marriage held by the bigots in defense of anti-miscegenation statutes.

In Loving v. Virginia, the opinion notes that the Virginia trial judge stated in accepting a guilty plea of a couple marrying in defiance of the ban of blacks and whites that:

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And, but for the interference with his arrangement, there would be no cause for such marriage. The fact that he separated the races shows that he did not intend for the races to mix.

Anyone want to defend that nonsense?

Christian, Mormon, or just plain stupid, opposing gay marriage is a political exercise in bigotry and ignorance that ultimately will fail through the courts upholding civil rights or the legislatures upholding civil rights.

Olson-Boies Case Gives Civil Rights for Gays Hope

Updae II: Bush v. Gore Foes Join to Fight Gay Marriage Ban (NYT) - Mr. Olson seemed confident that the makeup of the Supreme Court was right because of the presence of Justice Anthony M. Kennedy, pointing to two cases in which gay rights groups prevailed — a sodomy case in Texas and a constitutional ban on local antidiscrimination laws in Colorado — in which Justice Kennedy wrote the majority opinion. 'We studied this very, very carefully.'

Update: Civil rights groups say Make Change, Not Lawsuits, explicitly discouraging a federal legal challenge. "The arguments in the briefs are not the only thing that influences the Court’s decisions. The climate of receptivity and momentum in the country on these issues matter as well. There is much we can and should do together to strengthen our hand before we put a federal marriage case before the justices," reads the question and answer online sheet.

This is a defensive, crouching strategy that argues before demanding civil rights for everyone, make sure its okay with the bigots first. Put another way, "This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism," as MLK reminded us on one very special day.
---
The news that Bush v. Gore attorneys Theodore B. Olson and and David Boies are seeking an injunction against California's same-sex marriage ban could be the first step in the U.S. Supreme Court guaranteeing gay Americans equal protection, due process and privacy rights.

Their case, Perry, Stier, Katami and Zarrillo v. Schwarzenegger, could result in gays ultimately being permitted liberty to marry just like any other Americans as the U.S. Supreme Court may offer a liberty-friendly venue, contrary to a LA Times report.

Six years ago, the landmark due process decision Lawrence v. Texas (2003) [overturning the infamous Bowers v. Hardwick (1986)] was decided by a six-to-three majority.

Five pro-due process (and roughly speaking pro-liberty and pro-privacy) justices will likely sit on the Court [the pro-liberty Souter being replaced by the pro-liberty Sotomoyer] if the Olson-Boies case works its way to consideration by the Court. The wildcard Justice Anthony Kennedy wrote the Lawrence v. Texas (2003) decision.

Kennedy delivered the opinion of the Court in Lawrence v. Texas (2003) in which justices Stevens, Souter, Ginsburg, Breyer and O’Connor concurred in the judgment.

Justice Antonin Scalia filed a dissenting opinion in which Rehnquist and Thomas joined.

A near-future U.S. Supreme Court could offer a five-four decision overturning state and federal bans on gays marrying.

As Justice Kennedy writes in the Lawrence v. Texas opinion: "Far from possessing 'ancient roots,' American laws targeting same-sex couples did not develop until the last third of the 20th century."

Reading the Perry, Stier, Katami and Zarrillo v. Schwarzenegger brief, it's not difficult to speculate on a comprehensive decision in which gay marriage bans are overturned in the near future.

Near-Future U.S. Supreme Court Justices and Lawrence v. Texas

John Paul Stevens: Pro due process in Lawrence v. Texas (2003)
Ruth Ginsburg: Pro due process in Lawrence v. Texas (2003)
Anthony Kennedy: Pro due process in Lawrence v. Texas (2003)
Stephen Breyer: Pro due process in Lawrence v. Texas (2003)
David Souter: Pro due process in Lawrence v. Texas (2003) [Souter will likely be succeeded by a pro-due process Sonia Sotomayor]

Antonin Scalia: Against due process in Lawrence v. Texas (2003)
Clarence Thomas: Against due process in Lawrence v. Texas (2003)
Samuel Alito: Against liberty claims generally [succeeded pro-due process O'Conner]
John Roberts: Against liberty claims generally [succeeded against-due process Rehnquist]

via mal contends

California's Propositon 8 Decision Today

Update: California upholds prop eight. Gay marriage remains illegal in California. Eighteen-thousand existing gay marriages remain legal.

Bigotry versus equality today as California Supreme Court is expected to rule on Prop. 8 today.

The nation's eyes will focused on California as the fight for civil rights continues.

See also Proposition 8 legal filings for briefs and oral arguments.

The decision is scheduled to be posted at noon central time at California Court Opinions.

Objection, Compound Referendum

When Wisconsin citizens vote on constitutional amendments, the language should be clear so that a yes or no vote records the voter’s preference on what the referendum proposes.

A clarity issue, a clarity problem, is taken up by the Wisconsin Supreme Court in the Gay Marriage Ban case likely to be decided this year. [See William C. McConkey v. J. B. Van Hollen (Appeal Number 2008AP001868.]

This lack of clarity issue will be adjudicated by considering the "single-subject test" and essentially divining the general purpose behind the gay marriage and unmarried individuals propositions comprising the referendum. [The other issue is whether the Wisconsin voter McConkey has proper standing as a voter to object to the formulation of the referendum.]

The appeals court held that the few cases on point apparently offer conflicting approaches to applying the single-subject test, and that it is not clear what is the “proper method for determining the purpose of a proposed amendment” which would offer some guidance on this issue.

Constitutional amendment language

The language of the 2006 referendum reads:

Shall section 13 of article XIII of the constitution be created to provide that only a marriage between one man and one woman shall be valid or recognized as a marriage in this state and that a legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state? [Emphasis added]

Reading the question‘s 59 words, it’s easy to spot a problem in the formulation of the amendment language.

Compound question

It’s a compound question that asks for one response to two propositions from the voters on the same referendum question. This compound formulation promotes ambiguity rendering the electorate’s ballot preference unknown because voters were only able to get to cast one yes or no to the two different questions.

As mentioned, this problem is addressed in the judiciary through the “single-subject test,” cited as the central question by the Wisconsin Court of Appeals (District IV) decision to certify the case to Wisconsin Supreme Court: “[Was] the marriage amendment (enacted) in violation of the single-subject rule set forth in Article XII, section 1 of the Wisconsin Constitution.”

Common sense

Let’s apply some common sense analysis vis a vis Dane County Circuit Judge Richard Niess.

As reported in The Capital Times:

In his ruling last year, Dane County Circuit Judge Richard Niess said McConkey could sue (and his case was not tossed, and so moved ahead). But he ruled the two clauses in the referendum question were ‘two sides of the same coin’ and properly decided with one vote.

‘They clearly relate to the same subject matter and further the same purpose: the preservation and protection of the unique and historical status of traditional marriage,’ he said in a ruling from the bench.

What in Sam’s hell you thinking, Judge Niess? That's the same conclusion reached by the religious right, J.B. Van Hollen and the GOP who put this referendum on the ballot in the first place: "(H)istorical status of traditional marriage" is a GOP talking point used to protect America from the gays.

There is no justification for Niess imputing a unitary coherence onto the religious right's compound formulation.

This would be like the GOP passing an amendment calling for banning evolution being taught in public schools and prohibiting sex education in the schools, and the Niess saying the questions are related because of they further 'the preservation and protection of the unique and historical status of traditional family values.'

The first part of the referendum question asks about one man-one woman and marriage.

The second part of the question asks about “unmarried individuals” not having relationships resembling a legal marriage without mention of any gender requirement of the individuals in question.

The second part of the question applies to relationships among unmarried individuals and constraints on the legal recognition of certain relationships between unmarried individuals of unspecified gender that “shall not be valid or recognized in this state.”

Do you think a voter could be in favor of the first question but not the second?

And since the voter is forced to answer both questions with one yes or no, that there might be a problem of ambiguity here with the formulation?

Judge Niess’ speculation

Furthermore, Judge Niess’ speculation that the legislative purpose of the amendment is the “preservation and protection of the unique and historical status of traditional marriage” is foolish (and astoundingly ignorant) in the face of the dynamic, evolving history of marriage.

Back to the formulation. Banning same sex marriage in the first proposition. But what happened to same sex exclusions in the second proposition? It’s not there and the propositions are two different subjects with two very different political histories and two different public policy effects.

If Niess wants to speculate on purpose, he would be more on target to assert the GOP and religious right want to punish gays with whom they have both a strange interest and enmity.

And on the second matter, the GOP's politics are very weird about society sanctioning relationships between unmarried individuals of any gender because of their particular mores or political objectives of the moment.

In any event, Niess’ ruling sent the case forward to an appeals court that certified it for Supreme Court hearing.

Let’s hope the Supreme Court invalidates this plain compound-question referendum and the shameful constitutional amendment that it brought us, and creates a judicial doctrine that would offer guidance in the future for clear judicial policymaking should we ever again elect a legislature foolish enough to send voters a compound question as a referendum again.