A Dane County judge ruled Monday that Wisconsin’s 2009 domestic partnership registry does not violate the state’s constitutional ban on same-sex marriage or equivalent unions because of the registry’s inferior legal and social status.
Plaintiffs in the case, which include leaders of the local Wisconsin Family Action group who are against same-sex marriage and child rearing outside of marriage, argued the domestic partnership registry violates a 2006 voter-enacted constitutional amendment banning same-sex marriage and, crucially, equivalent unions such as Vermont’s then civil unions law, and that they as tax payers are injured by this.
Judge Daniel Moser examined several key questions in the case, including the original intent of the framers of the constitutional amendment.
Reviewing documents surrounding the constitutional amendment’s legislative debate, markup and later publicity, Moser found the amendment was and always had been designed as stated to block same-sex marriage and unions like Vermont’s then civil unions law.
However, Moser found that Republican lawmakers conceded in early memos they would not use the amendment to prevent the legislature from later offering some legal protections to same-sex partners so long as those rights were not packaged, as the amendment says, in a “substantially similar” way to the legal union of marriage.
Moser found this was even told to voters before they approved the amendment:
In a press release published five days before the public was to vote on the Marriage Amendment, Senator Fitzgerald informed voters that the Amendment would not prohibit the legislature from establishing a legal construct to provide benefits to same-sex couples:
The non-partisan Legislative Council has written that the proposed amendment does not ban civil unions, only a Vermont-style system that is simply marriage by another name. If the amendment is approved by the voters, which I expect it will be, the legislature will still be free to pass legislation creating civil unions if it so desires.
Plaintiffs argued the plain meaning of the marriage amendment which prohibiting “substantially similar” unions still covered domestic partnerships because they confer legal status to same-sex couples and that, they said, violates the will of voters who enacted this change to the state’s constitution.
Not so found Moser who determined the plain language to be clear: same-sex marriage is banned, as are civil union-style partnerships, but not the inferior domestic registry:
Three conclusions can be drawn regarding the meaning of the Marriage Amendment based on the foregoing analysis of the plain language, the constitutional debates and practices of the time, and the earliest interpretations by the legislature. First, the Marriage Amendment’s plain meaning establishes that a legal status for unmarried individuals is unconstitutional if the sum total of the legal rights, duties, and liabilities of the legal status is identical or so essentially alike that it is virtually identical to the legal rights, duties, and liabilities of the legal status of marriage. However, because there are two elements of marriage, a legal status for unmarried individuals is unconstitutional only if: (1) it is recognized by the state in a substantially similar way as marriage; and (2) if the state confers substantially similar benefits, rights, and responsibilities on the unmarried individuals solely by virtue of the status like the state does on spouses. Second, the Marriage Amendment’s second sentence prohibits the recognition of Vermont-style civil unions or a similar government-conferred legal status for unmarried individuals that is identical or virtually identical to marriage. Finally, the Marriage Amendment does not prevent the state from creating a legal construct to provide benefits to same-sex couples, nor does it prevent the legislature from packaging together a bundle of rights for same-sex couples.
Moser also noted the errant logic in Plaintiffs’ contention that voters enacted the same-sex marriage ban to further the procreative agenda of marriage and therefore the domestic registry, by granting partnership status to same-sex couples, violated that idea.
The judge, while remaining skeptical of whether this was in fact voters’ intent, pointed out that same-sex couples can not procreate and therefore even if the public did vote in support of this purpose there is nothing in the domestic partnership registry that would violate such a desire.
In closing, Moser denied Plaintiffs’ contention that domestic partnerships violate Wisconsin’s ban on same-sex marriage and equivalent unions by noting the inequality in the domestic partnership registry; in effect, because the registry is so substantially inferior in the rights it grants when compared to marriage or civil unions, the amendment could not be interpreted to make the registry unconstitutional:
Ultimately, it is clear that Chapter 770 does not violate the Marriage Amendment because it does not create a legal status for domestic partners that is identical or substantially similar to that of marriage. The state does not recognize domestic partnership in a way that even remotely resembles how the state recognizes marriage. Moreover, domestic partners have far fewer legal rights, duties, and liabilities in comparison to the legal rights, duties, and liabilities of spouses. Chapter 770 is not even close to similar to a Vermont-style civil union, which extends virtually all the benefits spouses receive to domestic partners. Instead, Chapter 770 is simply a legal construct created to provide some benefits to same-sex couples. As a result, Chapter 770 does not violate the Marriage Amendment therefore is constitutional.
The AP reports that Wisconsin Family Action have already said they will appeal all the way to the Supreme Court of the United States if necessary, with the group’s president Julaine Appling reportedly saying: We’re going to work through the process and we will be appealing as we work to defend the constitution and the institution of marriage.
It is estimated the registry has provided around 1,700 couples with domestic partnership rights since coming into force in 2009.
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