Lawmakers should
stay out of gay rights case, judge is told

The American Civil Liberties Union and the Wisconsin attorney general are making similar legal arguments in asking a judge to turn down the legislature's request to intervene in a major gay rights case. They are on different sides of the dispute, but both agree the legislature has no legal grounds to fight the lawsuit aimed at getting the state to pay for health care benefits for the partners of gay state employees. Republican lawmakers have hired the Alliance Defense Fund, a Christian advocacy group that fights gay rights, to represent their interests in the case even though they were not named as defendants in the lawsuit filed by the ACLU on behalf of eight state workers and their partners. Pending before Dane County Circuit Judge David Flanagan is the Alliance Defense Fund's request to intervene on behalf of the legislature, which argues that the debate is one for lawmakers to decide, not the courts. Attorney General Peg Lautenschlager and the Wisconsin Department of Justice are defending the state against the lawsuit, which claims the state's refusal to offer the benefits violates the Wisconsin constitution's equal protection clause. Because gay state workers cannot get married like their straight colleagues, the benefits policy discriminates against them, the lawsuit claims. In separate legal briefs filed last week, Lautenschlager and the ACLU used similar arguments in urging Flanagan to keep lawmakers out of the case. Flanagan set an August 11 hearing on the matter. The lawsuit was filed against the state agencies that employ the workers and another department that runs the state's benefits program. Both sides said the dispute is not about the legislature's ability to set social policy and make budgets, as Republicans contend, but rather a constitutional question best decided by the courts. They said lawmakers' claims that providing the benefits would be costly are exaggerated and that Lautenschlager can be trusted to defend the state's interests even though she supports domestic-partner benefits. Allowing the legislature to intervene also would delay the case and allow other groups to join, including a coalition of local governments that announced plans to try to intervene out of concern about the potential costs of providing benefits, they argued. Glen Lavy, a lawyer for the Alliance Defense Fund, said the agreement between ACLU and Lautenschlager lends support to conservatives' view that the Democratic attorney general cannot be trusted to defend the state. "She is on the same side as the ACLU, ultimately," he said in a telephone interview from Scottsdale, Ariz. Lautenschlager, in her brief, called such claims "at best highly speculative conjecture, at worst an irresponsible allegation." "Regardless of what her personal opinion might be, her interest is in fulfilling the duties of her office, which includes defending the constitutionality of statutes," she wrote. The gay rights battle has roiled Wisconsin politics ever since Democratic governor Jim Doyle proposed in February spending $1 million over two years to allow the University of Wisconsin system to provide such benefits to gay workers. UW schools say they are losing key administrators and professors over the policy, and UW-Madison is the only school in the Big Ten conference not to offer the benefits. The legislature's budget committee rejected the plan, with key GOP lawmakers saying they could not offer additional benefits at a time when the state faced major spending cuts. The ACLU quickly filed its lawsuit, which seeks health insurance for domestic partners of gay state employees, access to family leave so they can care for a sick partner, and the ability to convert sick leave credits to pay for a partner's health insurance upon leaving state employment. Gay rights supporters say the costs would be minimal and a convenient excuse for antigay legislators. Alliance Defense Fund's Lavy acknowledged his group wanted to get involved because it believes recognizing domestic partnerships undermines traditional marriage and is an incremental step toward legalizing same-sex marriage. The issue is likely to come up in the 2006 races for governor and attorney general. Both candidates for the Republican gubernatorial nomination have tried to tie Doyle to the ACLU, and ads aired by a conservative group suggested the governor wanted to raise hunting and fishing fees to pay for gay benefits. A constitutional amendment that would define marriage as between a man and a woman also may appear on the November 2006 ballot if both houses of the legislature approve it one more time. (AP)