Tuesday, July 16th, 2019

Novack fails the test

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Novack fails the test

Clerks responsible to uphold law

We can forgive Attorney General J.B. Van Hollen for sounding like Chip Diller in “Animal House,” saying “Remain calm, all is well!” right before getting trampled by county clerks all over the state rushing to issue marriage licenses to same-sex couples. After all, federal Judge Barbara Crabb still has not said county clerks should be issuing the licenses.

The decision by Crabb to end Wisconsin’s ban of gay marriage is not all that surprising. Van Hollen telegraphed the expected loss in court when he asked Crabb to stay her decision before she even announced it.

Crabb’s decision is also not all that surprising given some of her other decisions. It was Crabb who was the author of the infamous spearfishing decision. Crabb is also responsible for granting casino gaming rights to Native American tribes just because Wisconsin has a lottery.

Crabb’s decision also had interesting timing. It was the same weekend as the Democratic Party convention and Pride Fest in Milwaukee.

The stampede to the courthouses of Milwaukee and Madison began right away late Friday afternoon. Despite Crabb not announcing any effects of her decision, only that she will hear from both parties before deciding a remedy, Dane County and Milwaukee County courthouses were open special hours to marry as many couples as they could.

What was surprising was the decision by Waukesha County Clerk Kathleen Novack to join the crowd in issuing marriage licenses to gay and lesbian couples, too, and she even waived the waiting period.

Novack’s excuses are flimsy. She told the Waukesha Freeman she is following “what the federal judge is saying.” But the federal judge, Crabb, hasn’t said anything about issuing the licenses.

Then Novack claims she’s waiting on direction from the Vital Records Office. But why? Van Hollen has made very public announcements that the law is still in effect and even reiterated Tuesday that state officials have an obligation to uphold the law.

Finally there is no reason to waive the waiting period. These aren’t couples who have been planning on getting married for months and one of them forgot to go to the courthouse, the analogy she used. Crabb’s ruling didn’t come down until late Friday afternoon.

Given the ambiguous status of these couples, Novack would have been doing them a favor making them wait the five days. The five days might have been enough time to make the situation a bit clearer.

Besides, if Novack was really frustrated by a lack of direction, requiring the five-day waiting period would have been the smart move. She could have used the time to read a newspaper and learn what Van Hollen was advising the state’s county clerks.

But that would not have been nearly as exciting as joining the stampede to marry as many same-sex couples as possible before a court issues a stay preventing more marriages from taking place.

Crabb’s decision was an exercise in lawlessness. In her decision, she rejects federalism as a defense of the state Constitution. She rejects the ideas that the state can define marriage or even has a compelling interest for protecting the institution.

If you want historical irony, before Utah could be admitted as a state, Congress required an amendment in the state Constitution prohibiting polygamy. Crabb, in her decision, rejects that there can be a traditional definition of marriage, points to traditions of polygamy.

According to Crabb, marriage is whatever two (so far) consenting adults deem it to be. In the absence of any meaning in the law, it’s not surprising Milwaukee and Dane counties responded with lawlessness.

But Waukesha County should expect more from its public officials. Adherence to the law is not optional, even when it might not be fashionable.

Republican voters in Waukesha County picked Novack to replace the hapless Kathy Nickolaus. WISN-AM’s Mark Belling wondered aloud on Tuesday if Waukesha would have been better off with Nickolaus, given her conservatism.

Novack assured the Waukesha Freeman’s readers that she is, “a very conservative person” too.

Maybe. But this wasn’t a test of ideology. Conservative or liberal, Waukesha residents should be able to count on their county clerk to uphold the law.

It wasn’t a test of Novack’s politics. It was a test of her competence. She failed miserably.

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