Face it, Attorney General, there is not a single solid argument against marriage equality that can withstand judicial scrutiny.
Dear Attorney General Van Hollen,
Please tell me that after last Tuesday's judicial schooling of your Assistant Attorney General Timothy Samuelson that you will finally consider dropping your defense of Wisconsin's clearly unconstitutional ban on marriage equality. While the 7th U.S. Circuit Court of Appeals panel may not release its decision for a few months yet, it should be clear, even to a casual observer, that it is likely to be a unanimous decision to uphold Judge Barbara Crabb's ruling that the state's marriage amendment is unconstitutional.
The judges could not have been more clear about the absurdity of the state's arguments.
I wish that it had been you in the courtroom rather than your subordinate, Mr. Samuelson. As the top law enforcement officer in the state, it seems to me that you should have been the one defending the state's position in this case. Both you and Gov. Walker have insisted that it is your duty to uphold the Constitution by defending the amendment with all your might. What greater case for the attorney general to personally handle than one that regards the constitutions of both the state of Wisconsin and the United States?
Instead you sent someone in your stead and avoided the embarrassment of having to defend an amendment that is indefensible.
Did you instruct Mr. Samuelson to insist upon tradition as the basis of the state's argument or did he stumble upon that awkward defense himself? As Judge Posner pointed out, a tradition of bigotry and hatred does not justify the continuation of the behavior.
Face it, Attorney General, there is not a single solid argument against marriage equality that can withstand judicial scrutiny. Really, there are no arguments against it that can withstand a middle school student's scrutiny. Marriage is solely for procreation? Then those who cannot conceive should no longer be allowed to marry. Opposite sex marriage is better for the children? There is not one legitimate study that shows this. In fact, many studies show the opposite is true.
Same-sex marriage will lead to a devaluation of marriage? The divorce rate was already over 50% before Massachusetts became the first state to allow same-sex marriage, and that law has not prevented opposite sex couples from marrying or staying married.
Legalizing same-sex marriage will force churches to perform weddings that are against their religion? No, it will mean that same-sex partners will be able to legally marry. Period. Civil marriage and religious ceremonies are two separate things. Some churches will welcome it. Others will not. None will be forced.
Marriage has always been between one man and one woman? Well, not always. There have been polygamous societies, and research has shown that the early Christian church likely performed weddings for same-sex couples. The concept of marriage, even in our short American history, has evolved.
You hate queer people and think they're sinners, and that is why you want to outlaw same-sex marriage? While that may be the real reason opponents are fighting it, that is not cause enough to violate the United States Constitution. In fact, the Constitution was designed in part to protect minorities against that kind of hatred.
Please explain what you have to gain by continuing the fight. There is no doubt the 7th Circuit Court is going to rule against you. You can appeal to the Supreme Court, but every indication is that the court will take the various states' cases into consideration and rule that bans on same-sex marriage are unconstitutional. They cannot rule any other way unless they rule from religious/political bias or from emotions rather than jurisprudence.
Even the Supreme Court justices understand the need to be on the right side of history. Even those justices who might personally despise the idea of same-sex marriage can see through the flimsy arguments brought forth by those who support such a ban. The probability is that they will overturn the bans sometime in 2015, opening the way for nationwide same-sex marriage, just as Loving v. Virginia opened the way for those of different races to marry back in 1967. Unless you have been living under a rock, it is clear that decision is coming.
So what do you gain by continuing the losing battle to valiantly defend Wisconsin's ban on same-sex marriage? Perhaps you gain points with the conservative right, who will appreciate your tenacity even in a losing cause. Perhaps you have moral objections yourself to same-sex marriage and do not want to drop the case because that would allow Wisconsin's queer citizens to start marrying now. I can understand and appreciate that on one level. On the other, you are an elected representative of the people, and the people of Wisconsin are now of the majority opinion that marriage equality is a legitimate right. In addition, you need to keep in mind that there is no state religion. Your personal morals cannot be foisted upon the rest of us.
Perhaps it really is the reason you have given before -- that as the attorney general it is your duty to defend the Wisconsin Constitution. If that is the case, then you will push forward despite the wishes of the people, despite the waste of taxpayer money, despite the inevitable failure of the crusade. You will wait until the 7th Circuit Court hands down its decision, and then you will either appeal to have the full 10-member panel hear the case or appeal it to the U.S. Supreme Court. Either course will simply delay the inevitable end and paint a little less pleasant picture of your tenure as our attorney general.
As a citizen, I ask again that you do not continue to waste time and resources on this issue. Do us a favor and withdraw your defense of the amendment now.
Callen Harty is a resident of Monona. He publishes A Single Bluebird, and the original version of this letter was published here. "Citizen" is an opinion series that presents the views of the author. If you would like to reply, please comment or consider submitting an op-ed in response.