Debate over "state marriage preserver"

Item from the Smart Marriages Archive, reproduced in the Divorce Statistics Collectio n

Marriage-saving measure sows discord in capital

Thompson hires law firm to defend measure

By Jim Stingl of the Milwaukee Journal Sentinel staff

Feb. 11, 2000

Sounding like a quarrelsome married couple, the attorney general's and
governor's offices are battling over Attorney General James Doyle's
refusal to defend a new law creating a state marriage preserver whose job
would be to reduce divorces.

Doyle has informed Gov. Tommy G. Thompson that the law is
unconstitutional and cannot be legally defended against a lawsuit brought
by the Madison-based Freedom from Religion Foundation over issues of
church and state separation.

Unhappy with Doyle's decision, Thompson hired the Milwaukee law firm of
Reinhart, Boerner, Van Deuren, Norris & Rieselbach at $165 an hour to
defend the law.

The governor's office also contends that a Supreme Court decision
released Thursday in an unrelated case backs up its claim that the
attorney general has no business picking and choosing which laws to
defend.

That decision, in a case in which the attorney general sued the City of
Oak Creek in a fight over removal of a concrete channel from Crawfish
Creek, says in part that the attorney general does not have authority to
challenge the constitutionality of a state statute.

"We think it makes it very clear that the attorney general's duty is to
defend all laws whether he agrees with them or not. Just as it's the
governor's duty to defend all laws whether he agrees with them or not,"
said Kevin Keane, a spokesman for Thompson.

That's not clear at all, said Jim Haney, Doyle's spokesman.

"They're talking apples and oranges. It is not a case where the attorney
general was refusing to represent a statute," Haney said.

The job of the so-called community marriage policy coordinator would be
to assist clergy to develop standards for marriages solemnized by clergy,
with an eye toward lowering the number of divorces from their current
level of about 17,000 a year. It was part of the state budget bill, which
includes $210,000 to pay for the position.

Modeled after a private movement called Marriage Savers, the program
would be voluntary for communities. Couples would need to meet specific
requirements, such as premarital counseling and more counseling after the
weddings.

In December, the Freedom from Religion Foundation challenged the idea in
federal court in Madison, claiming it would use government money to
promote religion.

"This has happened to us before. Tommy Thompson would not take the advice
of the attorney general when we challenged the unconstitutional Good
Friday statute (giving state employees four hours off that day with pay).
He took an outside firm and they lost. I think he's picked another
loser," said foundation spokeswoman Annie Laurie Gaylor.

Since he became attorney general nine years ago, Doyle has refused on six
occasions to defend state laws from a legal challenge because he believed
the laws were unconstitutional.

"And in all six of those cases, the court has agreed with the attorney
general, even though the governor went ahead and hired special counsel to
defend a law that didn't deserve defense," Haney said.

Assembly Speaker Scott Jensen (R-Town of Brookfield), who introduced the
marriage coordinator proposal into the budget bill, has joined with
Thompson in criticizing Doyle. But in the meantime, he got Assembly
approval for a modification of the law to drop the word "clergy" and open
the program to those married in civil ceremonies, too.

Doyle said that would help bring the law in line with the constitution,
but it wouldn't make it a good idea.

"I'd have to take a look at it. Probably on the constitutionality it
would take care of the concern. But there's still this policy issue of
what one state bureaucrat is going to do about marriages in the state of
Wisconsin. The whole thing seems kind of absurd on its face," Doyle said.

The law unfairly draws its funding from money earmarked for needy
families, Gaylor said.

"This is still robbing the poor to give Jensen a platform to be the most
pious gubernatorial wannabe," Gaylor said.

"We wear partisan potshots from Annie Laurie Gaylor as a badge of honor
in this office," said Jensen aide Steve Baas.

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