Judge Rules Wis. Partnerships Do Not Violate State’s Gay Marriage Ban

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.

You can read the full text of the ruling here.

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Photo used under the Creative Commons Attribution License, with thanks to -Marlith-.


Stanley J.
Stanley J.4 years ago

There is a threat to marriage - its the 50% divorce rate of st8 couples. along with the 39% of American children living in single parent families

the conservatives should be glad that gays want to support the institution of marriage, but it doenst work that way when as usual religion becomes involved.

BTW David Boise who along with Ted Olson took the marriage biz to the supreme court and won re prop 8 and doma - Ted is a liberal, David is a Conservative.

Janice A.
Janice Adams6 years ago

It is really time to remove the government from marriage and sex. It has no place in either of these areas. People need stability of love and finance. Give them that and the world is a happier place. I am a heterosexual female married for 33 years. I absolutely can think of no reason or any way same sex marriage is going to do me any harm. Unless all these men who are against it divorce their wives and marry men and mine does too. Is that the fear, that the only thing stopping all men from being gay is the law. Excuse me while I roll around on the floor with laughter. I think it is time we all acted like we care for all our fellow citizens and give them the same right to lifelong partnership and financial stability that we as straight people have.

Norma V.
Norma Villarreal6 years ago

Separation of church and state...when will we get it? This is about equality for human beings.

Winn Adams
Winn A6 years ago

Every adult who wants to get married should be able to get married. It should Never matter if it's 2 men or 2 women or a man and a woman.

Alicia N.
Alicia N6 years ago

noted with thanks.

Marilyn L.
Marilyn L6 years ago

The simple answer to this issue is and has always been changing the marriage license to a domestic partnership license for all citizens, LGBT or straight. Therefore, giving all domestic partnership access to the same benefits and laws. Since most folks view a marriage ceremony as religious we should leave that up to the various relgious institutions on who they want to marry.

Being a lesbian and having been in a partnership for over 20 years and having two adult daughters, I have giving this a lot of thought. And I have come to the conclusion that the religious right does not want the above mention simple solution because they would then have to recognize the truth, that there is a separation of church and state.

Gary Stewart
Gary Stewart6 years ago

Marriage to furniture? As a male I dare say that many boys, straight and gay have humped their bed on more than one occasion but I have never heard of any of them wishing to marry the bed. And how exactly does a bed say "I do"? I've heard the springs creak a few times but it never remotely sounded like a marriage vow! Rebecca Kleefisch may be right though, heterosexual marriage started us on the slipppery slope that could lead to this kind of thing, we should ban ALL marriage immediately and retrocatively anull those that already exist! If we continue to allow men and women to marry they'll want to start marrying their dogs, dogs will want to marry cats, the cat will want to marry a canary or goldfish! Wisconsin Family Action should broaden the scope of their opposition to marriage!

Allan Yorkowitz
.6 years ago

Kenny W: Where did you read this judge was a republican?

Miguel S.
Miguel Suarez6 years ago

It is very sad when the judge himself indicated that it does not violate State law do to
the "of the registry’s inferior legal and social status". What this mean is that Gay people are treated as inferiors in that State. This is shameful and Wisconsin you should be ashamed of youself.

Kenny West
Kenny Wes6 years ago

Wisconsin is a perfect example of why you don't want republicans in control of the Country.