updated 8/21/2009 6:06:03 PM ET 2009-08-21T22:06:03

Wisconsin's attorney general said Friday he will not defend a new law that grants same-sex couples spousal benefits such as hospital visitation and inheritance, saying lawmakers went against voters' decision not to extend such privileges.

"When the people have spoken by amending our Constitution, I will abide by their command," said Attorney General J.B. Van Hollen, who believes the law is unconstitutional. "When policy makers have ignored their words, I will not."

The law, which took effect Aug. 3, allows gay and lesbian partners to receive dozens of the same legal protections as married spouses. So far, 413 couples have been added to the state registry and more have applied.

The conservative Wisconsin Family Council asked the state Supreme Court last month to invalidate the law. The group argued that it conflicts with a 2006 constitutional amendment approved by voters that banned gay marriage and any "substantially similar" relationships.

Wisconsin was the first state to grant domestic partnerships to gay couples despite having the constitutional ban. It was also the first Midwestern state to give gay couples some legal protections legislatively.

Van Hollen, a Republican, said the domestic partnerships as defined by the law are "substantially similar" to marriage. He accused the Democratic-controlled Legislature and Gov. Jim Doyle of ignoring the will of the people.

The decision by Van Hollen to declare the law unconstitutional will force the state to pay the expense of hiring an outside counsel to defend the law, a task normally performed by the attorney general's office. Outside lawyers typically cost taxpayers about $175 per hour.

The high court last week asked the state to respond to the lawsuit by Aug. 31 as it considers whether to take the case. Four of the seven justices would have to agree to do so. If they decline, the law would stand but the group could file a challenge in circuit court.

'Sloppy political decision'
Attorney Brian Raum, who is representing the conservative group, said Van Hollen's decision strengthens the group's case.

"I certainly think it helps," he said. "The attorney general's opinion in regard to the registry's unconstitutionality may be a positive factor in helping the court to make a decision on this."

Rep. Mark Pocan, an openly gay Madison Democrat who championed the law, said Van Hollen was trying to score political points with his conservative base.

"That's clearly a statement by J.B. Van Hollen the politician, not J.B. Van Hollen the attorney general," he said. "He's trying to make a name for himself but this is the kind of sloppy political decision that hurts the institution."

The governor and lawmakers who supported the law have expressed confidence it will be upheld since the rights granted to same-sex couples gives them only 43 of the 200 rights given to married couples.

Registering will make it easier for same-sex couples to complete legal transactions like transferring property and executing wills, and can be used to obtain health insurance through employers that extend coverage to domestic partners.

They also will be guaranteed the right to visit each other in hospitals and care facilities, make end-of-life-decisions and take off work under the Family and Medical Leave Act to care for each other. They will not have the right to jointly file taxes, among others.

The nonpartisan Legislative Council concluded the law should survive a legal challenge because it does not give "comprehensive, core aspects of the legal status of marriage to same-sex couples." Those include the ability to divorce and to share marital property.

More on gay marriage

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