Domestic Partnerships &
|One part restricted civil marriage to a union of one man and one woman. |
|The second forbids the state from granting civil union status or other similar legal recognition to unmarried couples that is similar to marriage.|
The specific wording of the amendment is:
"Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state.
A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state." 1
That is, loving, committed same-sex couple could not marry in Wisconsin, and the state government could not pass civil union legislation, as has been done in a few other states, that gave same-sex couples similar legal benefits to marriage. Also, same-sex couples could not go to another state, be married or register their relationship as a civil union there, return to Wisconsin, and ask that their new status be recognized. However, the Wisconsin Legislature could pass legislation creating Domestic Partnerships that resemble civil unions, except that only a small group of rights, benefits, and protections from the hundreds that are given automatically to all married couples would be given to same-sex couples.
William McConkey, a political science instructor, filed a lawsuit that challenged the amendment in state court. He argued that state law limits referendums to a single subject, and that the referendum is invalid because it put two questions to the voters, some of whom might favor one part and oppose the other. For example, polls showed that many voters were in favor of banning same-sex marriage but supportive of civil unions.
McConkey lost before a Dane County judge in 2008. He appealed to the Madison, WI appeals court. In 2009-APR, the appeals court asked the Wisconsin Supreme Court to take the case as quickly as possible. The Supreme Court accepted it for review.
The court ruled on two topics:
|Whether the 2006 constitutional amendment was valid.|
|Whether a single voter has sufficient standing to launch a lawsuit. McConkey is a heterosexual who has a lesbian daughter.|
The court announced on 2009-MAY-14 that lawyers had 30 days in which to file their initial briefs.
Bill Cosh, a spokesperson for Attorney General J.B. Van Hollen (R) said:
"We have defended the voter's choice, and we will continue to do so."
His comment appears to be unrelated to the purpose and goal of the lawsuit. The question is not whether the 59% support for the amendment should be defended. It is whether the wording of the amendment was actually constitutional or not.
Katie Belanger is the legislative director of Fair Wisconsin, the largest gay human rights group in the state. She seemed to get the point. She praised the state Supreme Court's decision to take the case, saying:
"The constitutional amendment is definitely something we see as a stain on the constitution. It sort of enshrines discrimination. We are really looking forward to the Supreme Court making a fair decision about whether or not the amendment was put to the people in the legal and constitutional way." 2
Lester Pines, the lawyer representing plaintiff McConkey, said that he was looking forward to:
"a spirited and fun oral argument. ... This is a very significant legal issue. It's really not necessarily only about marriage. It's really about how things are supposed to be submitted to the voters."
If McConkey had won the case then:
|Wisconsin's legislators could amend the marriage law that limits marriage
to one woman and one man at any time, and legalize same-sex marriage (SSM) throughout the
|It could enable gay, bisexual, and/or civil rights groups to launch a
constitutional challenge in state courts to overturn the current state marriage law and legalize SSM.|
|Most likely, it would trigger two new referendums to doubly enshrine discrimination in the constitution: one referendum to prohibit SSM and another to prohibit civil unions. Both would probably pass if done quickly. However, they would probably receive less support than the 2006 referendum did because of the gradual nationwide increase in support for SSM which shows no signs of slowing down.|
However, during 2010-JUN, the Wisconsin Supreme Court unanimously upheld Referendum 1 as constitutional in its banning of both same-sex marriage and civil unions. 3
Justice Michael Gableman wrote the ruling for the court, saying that both parts of the question had the same general subject: to preserve the definition of marriage as restricted to a voluntary union of one woman and one man.
Governor Jim Doyle (D) proposed a bill to create domestic partnerships that would give 43 benefits to registered same-sex partners. This is a small fraction of the hundreds of benefits and protections that are automatically granted to all married opposite-sex couples. Included would be the right to visit each other in hospital, and to inherit each other's property without having to pay state inheritance taxes. These are rights married opposite-sex couples are given but that same-sex couples have always been denied. The latter couples had always been considered mere roommates by the state, and their children were viewed as illegitimate.
In 2009, the Legislature very narrowly passed a domestic partnership law for loving, committed same-sex couples. The vote was as close as we have ever seen: 50 to 48 votes in the state Assembly and 17 to 16 in the Senate. It was signed into law by Governor Doyle (D) on 2009-JUN-29 and went into effect on 2009-AUG-03. Wisconsin became the first state among the relatively conservative states in the Midwest to recognize same-sex relationships in any way.
To be eligible to enter a domestic partnership, the couple has to be of the same sex. Both must be at least 18 years-of-age, must live together, and must be no more closely related than second cousins.
WFA was the main conservative group promoting the 2006 "Marriage Protection Amendment" to the Wisconsin Constitution that banned civil unions and same-sex marriage in the state. Three members of the WFA filed a lawsuit Appling v. Dole with the Wisconsin Supreme Court on 2009-AUG-03. Their main concern was not so much the relatively few benefits and protections given to same-sex couples. It was that these couples had been given any legal status at all. Recognizing the validity of a relationship between two persons of the same sex with even one benefit or protection for the couple and/or their children was one too many to the WFA. The court refused to consider the case.
The lawsuit was refiled in state circuit court. On 2011-JUL-20, Dane County Judge Dan Moeser ruled that the domestic partnership law the state:
"... does not recognize domestic partnership in a way that even remotely resembles how the state recognizes marriage."
He concluded that domestic partnerships were constitutional. The case was appealed to the state appeals court which unanimously upheld the lower court's decision. 4 And so, domestic partnerships were allowed to continue. Same-sex registered couples and their children received at least a few basic benefits and protections.
Between MAY-19 and 22, PPP asked 1,636 Wisconsin voters ten questions. The first was:
This poll showed an unusually large difference in opinion between women and men. Women were 49% in favor of SSM and 37% opposed. Male voters were 34% in favor and 55% opposed. 5
The margin of error in these results was about ±2.4 percentage points.
The following information source was used to prepare and update the above essay. The hyperlink is not necessarily still active today.
First posted: 2009-MAY-20
Latest update: 2014-JUN-14
Author: B.A. Robinson
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