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Same sex marriage (SSM) & domestic partnerships

In Wisconsin

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Overview:

In 2006, Wisconsin voters passed an amendment to the state constitution with 59% support. It consisted of two parts:

bulletOne part defined civil marriage as a union of one man and one woman.
bulletThe 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

William McConkey, a political science instructor, filed a lawsuit to challenge the amendment. 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 Madison, WI appeals court. In 2009-APR, the appeals court asked the Wisconsin Supreme Court to take the case as soon as possible. The Supreme Court accepted it for review.

The court ruled on two topics:

bulletWhether the 2006 constitutional amendment was valid.
bulletWhether 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, the legislative director of Fair Wisconsin, the largest gay human rights group in the state, 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:

bullet 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 state.

bullet It could enable gay, bisexual, and/or civil rights groups to launch a lawsuit in state courts to overturn the current state marriage law and legalize SSM.

bullet 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 nationwide increase in support for SSM which shows no signs of slowing down.

However, during 2010-JUN, the Wisconsin Supreme Court unanimously upheld the state's constitutional ban on 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.

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2009: Domestic Partnership law passed:

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 granted to married opposite-sex couples. Included would be the right to visit each other in hospital, and to inherit each other's property. These are rights married opposite-sex couples are given but that same-sex couples have been denied. The latter couples were considered mere roommates at the time 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 on 2009-JUN-29 and went into effect on 2009-AUG-03. Wisconsin became the first state 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.

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Wisconsin Family Action (WFA) launches court challenge against domestic partnerships:

WFA was the main group promoting the 2006 "Marriage Protection Amendment" to the state Constitution that banned civil unions and same-sex marriage in Wisconsin. 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. 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

2013-AUG-04: Governor Quinn of Illinois urged Wisconsin to grant marriage equality:

Governor Pat Quinn (D) urged the government of Wisconsin to pass marriage equality legislation. He argued that Iowa, Minnesota, Wisconsin, and Illinois should serve as an example for equal rights for the rest of the country. He said:

"We don’t want folks in Iowa or Minnesota having more rights than people in Wisconsin or Illinois. It just isn’t fair. It’s important that we show our country and the world that marriage equality is all about fairness."

Marriage became available to same-sex couples in Iowa as a result of a ruling by the state Supreme Court. It became available in MInnesota as a result of a bill in the Legislature. Illinois came close to legalizing same-sex marriage when a bill was passed in their Senate. But there were not quite enough votes in the House to pass it when the House entered its summer recess. It is expected to be voted upon later in 2013.

Wisconsin Governor Scott Walker (R) responded:

"To change anything in the constitution ...requires two consecutive sessions of the legislature, and ultimately, a vote of the people. I just don't see that as being anything that's going to be addressed anytime soon."

After the 2012 elections, Republicans retained their control of the Wisconsin House. In every state legislature where marriage equality has been debated, essentially all Democratic legislators have voted in favor and essentially all Republicans have voted against the bill. There is no significant chance of any movement towards marriage equality in Wisconsin until the Democrats get control of both the House and Senate. 5

Even if the Legislature is receptive to the idea of marriage equality, it would probably take at least four or five years to grind through the onerous procedure of repealing the existing amendment to the state Constitution. Only then could the legislature amend the marriage act to allow same-sex couples to marry. 6

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Reference used:

The following information source was used to prepare and update the above essay. The hyperlink is not necessarily still active today.

  1. "List of U.S. state constitutional amendments banning same-sex unions by type," Wikipedia, as on 2013-JUL-11, at: http://en.wikipedia.org/
  2. "State to reevaluate gay marriage ban," Associated Press, 2009-MAY-14, at: http://badgerherald.com/
  3. "Wisconsin Supreme Court unanimously upholds gay marriage ban ," Wisconsin State Journal, 2010-JUN-30, at: http://host.madison.com/
  4. "Appling v. Doyle," Wikipedia, as on 2013-ZPR-03, at: http://en.wikipedia.org/
  5. Daniel Reynolds, "Illinois Gov. urges Wisconsin to pass marriage equality," The Advocate, 2013-AUG-06, at: http://www.advocate.com/
  6. Chris Hubbuch, "Wisconsin unlikely to follow Minnesota's lead on gay marriage," La Crosse Tribune, 2013-MAY-14, at: http://www.twincities.com/


Site navigation:

Home > Religious info. > Basic > Marriage > SSM > Menu >here

Home > "Hot" topics > Homosexuality > SSM > Menu > here

First posted: 2009-MAY-20
Latest update: 2013-AUG-14
Author: B.A. Robinson

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