Discord Over Marriage-Saving Measure -2/11/00

Sun Feb 13 17:30:25 EST 2000

from: Smart Marriages

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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