Vol. 82, No. 11, November 2009
by Christopher S. Krimmer
On July 23, 2009, Julaine Appling, the president of Wisconsin Family Action, and other members of the organization’s board filed a lawsuit with the Wisconsin Supreme Court seeking to have the court find the Domestic Partnership Registry a violation of the state constitution’s “marriage amendment.”1 The marriage amendment states as follows:
“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.”2
The court’s decision in Appling v. Doyle will turn on whether the rights granted under the domestic partnership legislation are so extensive that they create a status “identical or substantially similar” to marriage. This will be the court’s first opportunity to address the constitutionality of the registry since its enactment on June 29, 2009. The court may rely on decisions from two other states that have addressed marriage amendments that included a prohibition of other relationships similar to marriage.
Michigan passed a marriage amendment that states “… the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.”3 Several universities and municipalities provided domestic partnership benefits. The Michigan Supreme Court was asked if the benefits violated this marriage amendment.4 The Michigan court relied heavily on the phrase “for any purpose” in finding that practically any rights similar to marriage that are granted to same-sex couples would run afoul of the amendment. The Wisconsin marriage amendment appears to not have such a broad restriction, because it does not include the “for any purpose” language.
Ohio’s highest court also has addressed the application of a marriage amendment. In 2004, Ohio voters passed an amendment that states as follows:
“Only a union between one man and one woman may be a marriage valid in or
recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.”5
Michael Carswell was indicted for domestic violence against his live-in girlfriend. The Ohio domestic violence statute provides that no person may physically harm a “household member.”6 A household member includes a person who had been “living as a spouse” with the defendant.7 Carswell argued that the designation of “living as a spouse” was contrary to the Ohio Marriage Amendment because it created a legal status for unmarried individuals that approximates the “design, qualities, significance or effect of marriage.”8 The trial court agreed and dismissed the indictment.
The Ohio Supreme Court reversed the trial court. The supreme court did not believe that the statute’s definition of “living as a spouse” rose to the level of creating a legal status similar to marriage. The court relied on the dictionary definition of legal status: “a person’s legal condition, whether personal or proprietary; the sum total of a person’s legal rights, duties, liabilities, and other legal relations.”9 The court found that the protection given to a domestic violence victim does not bestow any rights, duties, or liabilities of marriage. A single right of protection from domestic violence is not equivalent to the status of marriage.
The Michigan and Ohio decisions illustrate the arguments that likely will be heard in Appling v. Doyle. The question is whether the 43 rights in the Wisconsin domestic partnership legislation rise to the level of creating a legal status identical or substantially similar to the hundreds of rights bestowed on spouses.10 If the Wisconsin court relies on the dictionary definition of legal status, as did the Ohio Supreme Court, it must decide if a married person’s “legal condition, whether personal or proprietary” is so similar to a domestic partnership that the two forms of recognition are identical or substantially similar. The term personal seems to require analyzing whether society views marriage and domestic partnerships as equivalents in form, structure, history, and societal approval. In other words, does society view domestic partnerships as interchangeable with marriage?11
The question may not need to be answered. The Wisconsin Supreme Court recently agreed to hear a challenge to the marriage amendment, presented in McConkey v. Van Hollen.12 The lawsuit alleges that the 2006 amendment was improperly put before the voters because it asked two distinct questions in one ballot measure. The voters were asked to decide on the question of both same-sex marriage and a “legal status identical or substantially similar” to marriage. Article XII, section 1 of the Wisconsin Constitution lays out the single-subject rule: a constitutional amendment shall be submitted in such a manner that the people may vote for each issue separately. The plaintiff argues that the voters were forced to accept all or nothing; they did not have the option of voting against same-sex marriage but in favor of a legal status identical or substantially similar to marriage. The attorney general argued at the trial court, and a Dane County judge agreed, that both questions addressed the single purpose of preserving the historical status of marriage.
If the amendment is found to violate the single-subject rule, it does not mean that gay marriage in Wisconsin will become legal. Marriage in Wisconsin would remain limited to a husband and wife under statutory law.13 A holding that the amendment is unconstitutional would, however, eliminate the prohibition against a legal status identical or substantially similar to that of marriage.
Wisconsin once again is at the forefront of gay and lesbian rights. Wisconsin was the first state in the country to enact nondiscrimination protections on the basis of sexual orientation. It is now the first state in the country to enact a domestic partnership registry after amending its constitution to prohibit same-sex marriage. Both progressive and conservative groups throughout the country will be interested in the outcome of this litigation. Whatever the Wisconsin Supreme Court may decide on the constitutionality of the Domestic Partnership Registry, one thing is certain: the decision undoubtedly will have an effect well beyond our state.