A nationally-watched Wisconsin law creating a state coordinator to “assist” clergy to develop “community-wide standards of marriage” was ruled unconstitutional in a firm decision issued on May 25 by U.S. District Judge John Shabaz.
The state position was to be modeled after a Christian program, Marriage Savers, based in Maryland and directed by evangelical columnist Mike McManus. Wisconsin Assembly Speaker Scott Jensen placed an item in last year’s state budget appropriating $210,000 in federal Temporary Assistance to Needy Family funds for the state position. There were no public hearings or debate over the highly-criticized measure. Lawsuit records uncovered the fact that it was McManus who suggested that Wisconsin use the federal program for the poor as its funding source. The Freedom From Religion Foundation filed a lawsuit last December challenging the appropriation.
Plaintiffs included the Foundation and its staff members Anne Gaylor, Dan Barker, and Annie Laurie Gaylor, as well as the Rev. Charles Wolfe, pastor of Plymouth Congregational Church, Madison. The lawsuit contended the law violated both religion prongs of the First Amendment, as well as the Fourteenth Amendment guaranteeing equal protection of the law. In January, Wisconsin Attorney General James Doyle refused to defend the budget item, advising Gov. Tommy Thompson that the act was unconstitutional. Doyle wrote that the law “has as its only purpose the strengthening of religious marriages.”
Thompson subsequently hired Milwaukee attorney Dan Kelly, a graduate of Pat Robertson’s Regent University Law School, to represent the state. Wrote Shabaz, a former colleague of Gov. Thompson: “The Wisconsin Legislature has favored clerical officiants over the secular and has conveyed a message that religiously solemnized marriages are preferred to those secularly solemnized. Such an imprimatur stamped on religion by the state is a violation of the Establishment Clause.” [See pages 10-11 for the entire text of the court decision.]
This is the seventh time Gov. Thompson has lost a lawsuit he pursued against the advice of Wisconsin Attorney General Jim Doyle. As the top-of-the-fold headline of the May 27th Capital Times put it: “Governor bats 0-7 vs. Doyle. Rejects advice again, loses 7th big decision.” It is the second Foundation lawsuit Thompson has lost after hiring outside counsel to defend a law against the attorney general’s advice. The first lawsuit was the Foundation’s 1995 federal court victory declaring Wisconsin’s Good Friday state holiday unconstitutional. The entanglement between the state and Christian Marriage Savers became obvious during the course of the lawsuit. McManus even dictated a legal strategy to the state, which Assembly Speaker Scott Jensen tried unsuccessfully to follow, to enact a “budget correction” applying the law to all marriage officiants, not just clergy, and thus, McManus hoped, nullifying the Foundation’s lawsuit.
Since losing the lawsuit, Jensen has petulantly blamed the Legislative Reference Bureau for drafting the wrong version of his bill, although his office issued a November press release announcing the program was modeled after Marriage Savers, which works exclusively with clergy. McManus also tried to persuade the State of Wisconsin that it was legally obligated to work with and promote Marriage Savers, claiming the legislation used a phrase which Marriage Savers had trademarked. McManus told the state it either had to hire Marriage Savers Wisconsin coordinator, Larry Ballard, or contract with Marriage Savers to oversee the project.
“In either scenario, Larry Ballard would have the job,” wrote McManus in a January memo. After the Foundation’s lawsuit was filed, McManus urged states to bypass the legislative process in funneling federal poverty funds for Marriage Savers programs.
“We’re delighted we were able to overturn the ‘Marriage Meddlers’ law so quickly, but remain concerned that Marriage Savers has its eye on public funds to promote its religious agenda,” said Anne Gaylor, Foundation president. Marriage Savers’ “Biblical Standards” Among the Marriage Savers policies which the Christian group wanted the State of Wisconsin to implement and promote with clergy was a “Premarital Sexual Covenant.” Marriage Savers literature invokes Thessalonians 4:3-8, in which Paul says “that each of you should learn to control his body in a way that is holy and honorable, not in passionate lust like the heathen, who do not know God.” In an optional “Premarital Sexual Covenant” between “the younger couple, their [church] mentors and God,” the engaged couple agrees to: “
1. Be honest about the physical part of your relationship. Consider making a commitment to keeping your physicality at #7 or below. (1) Look (2) Touch (3) Lightly holding hands (4) Constantly holding hands (5) Light kiss (6) Strong kiss (7) French kiss (8) Fondling breasts (9) Fondling sexual organs (10) Sexual intercourse “2. If the physical level exceeds #7 you both must be willing to inform your mentor couple. The man must contact the mentors within 24 hours after exceeding the physical limit. If the man does not do this, the woman would do so. Letting your mentors know keeps you accountable, so that the focus can be on spiritual, character-bonding issues.” The couple is then asked to sign a pledge: “We pledge to hold our relationship to a Biblical standard, so that the Lord might bless this relationship now, and in the many years ahead.
