Vol. 78, No. 3, March
Wisconsin constitutional amendment to define marriage:
The legal context
Wisconsin law does not now recognize same-sex marriages and civil
unions. The authors provide the legal context to explain why amending
the Wisconsin Constitution to define marriage and prohibit civil unions
is both unnecessary and bad public policy.
by Carl J.
Rasmussen & Susan L.
he Wisconsin Legislature, in 2003 Assembly Joint Resolution 66, has
resolved to amend the Wisconsin Constitution to define marriage as a
legal status exclusively betwen one man and one woman and to preclude
unmarried persons from having the benefit of marriage or any similar
The purpose of this article is to help Wisconsin attorneys understand
the proposed amendment in its legal context. A review of that legal
context suggests that the proposed amendment is unnecessary and is bad
public policy. Our legislature should withdraw the proposed amendment
and do the more difficult work of creating remedies for the actual
problems arising from the de facto existence of same-sex relationships
2003 Wisconsin Assembly Joint Resolution 66
2003 Wisconsin Assembly Joint Resolution 66 states:
Carl J. Rasmussen, U.W. 1982, is
a Madison attorney; a fellow of the American College of Trust and Estate
Counsel; and former chair of the State Bar Real Property, Probate and
Trust Law Section. Susan L. Collins,
U.W. 1995, is a Madison attorney, cochair of the State Bar Gender Equity
Committee, and a member of the Wisconsin Judicial Council. The authors
thank Timothy J. Cruz, U.W. Law School, for his assistance.
This article was first prepared as an opinion for the Wisconsin
Council of Churches board of directors. The article does not necessarily
reflect the views of the Wisconsin Council of Churches.
"Resolved by the assembly, the senate concurring, That:
"Section 1. Section 13 of Article XIII of the Constitution
is created to read: [Article XIII] Section 13. 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
On March 5, 2004, the Wisconsin Assembly voted 68-27 in support of
Resolution 66. One week later, the Wisconsin Senate approved the measure
20-13. In accordance with state constitutional requirements, the
resolution was published during the months before the November 2004
general election.1 If the Wisconsin
Legislature approves the resolution in its 2005 session, a statewide
referendum on the constitutional amendment will be held, probably in
To understand the proposed amendment in its legal context, it is
necessary to review the law relating to same-sex marriage in other
states, at the federal level, and in Wisconsin.
Same-Sex Marriage: Other States
In the early 1990s, civil unions and same-sex marriages emerged as
significant legal issues in several states.
In 1993, in Baehr v. Lewin,2 the
Hawaii Supreme Court held that a statute barring same-sex marriage might
violate the state's constitution. Before the court issued its final
ruling in the case, voters approved an amendment to the Hawaii
Constitution granting the legislature the authority to define marriage
as a status between a man and a woman.
Before Baehr, state appellate courts had uniformly held that
the prohibition of same-sex marriage violated no constitutional
right.3 After Baehr, the validation
of civil unions in Vermont and same-sex marriages in Massachusetts
helped elevate these issues to national importance.
Following a Vermont Supreme Court decision holding Vermont's marriage
law unconstitutional, the Vermont Legislature granted civil status to
same-sex couples, effective July 2000.4 In
Vermont, parties to a civil union are afforded the same benefits,
protections, and responsibilities as are spouses in a marriage, but they
do not receive a marriage license.5
In an extensive opinion, the Massachusetts Supreme Judicial Court
held that under the Massachusetts Constitution, Massachusetts may not
bar same-sex couples from civil marriage. In Goodridge v. Department
of Public Health,6 the court
acknowledged the broad power of the state to regulate civil marriage.
However, the court upheld a constitutional right for people of the same
sex to marry each other.7
The Goodridge court stayed entry of its judgment for 180
days to permit the Massachusetts Legislature to take such action as it
deemed appropriate. The Massachusetts Senate responded by drafting a
bill titled "An Act Relative to Civil Unions," which distinguished a
marriage from a samesex civil union.8 In an
opinion to the senate, the Massachusetts Supreme Judicial Court stated
that the bill maintained "an inferior, and discriminatory status for
samesex couples" and was unconstitutional.9
States have responded to these developments in Vermont and
Massachusetts. Several states have acted to provide some marriage-like
benefits to same-sex couples. For example, Hawaii allows residents to
register as reciprocal beneficiaries, and California, New Jersey, Maine,
and the District of Columbia have enacted domestic partnership laws.
A number of other states - among them, Wisconsin - have sought to
insulate themselves from these developments, by amending their state
constitutions to prohibit same-sex marriage. Most states have already
prohibited same-sex marriages legislatively,10 but given recent developments, some states seek
constitutional guarantees to prevent their courts from finding same-sex
marriage or civil union to be a constitutionally protected right.
Sixteen states have adopted constitutional amendments banning same-sex
marriage: Alaska, Arkansas, Georgia, Kentucky, Louisiana, Michigan,
Mississippi, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio,
Oklahoma, Oregon, and Utah.11 In 2004,
legislative initiatives in 14 states to amend those states'
constitutions to ban same-sex marriage failed. However, already in 2005,
19 state legislatures are considering constitutional amendments to ban
Same-Sex Marriage: Federal Law
Given current developments, Congress and President Bush have sought
to insulate states from attempts to legitimize same-sex marriages.
However, the 2003 decision by the U.S. Supreme Court in Lawrence v.
Texas13 has opened the question of the
Court's intervention on this issue. The federal context is framed by
Lawrence, on the one hand, and the restrictive federal Defense
of Marriage Act, on the other hand.
Lawrence v. Texas and Romer v.
Evans. In Lawrence v. Texas,14 the U.S. Supreme Court overturned the
convictions of two adult men for engaging in consensual sexual activity
in their home. The men were convicted under a Texas statute
criminalizing "deviate sexual intercourse" between individuals of the
same sex. The Court held that the men's convictions violated their due
process liberty and privacy interests under the U.S.
Constitution.15 The majority made clear
that its decision "does not involve whether the government must give
formal recognition to any relationship that homosexual persons seek to
enter."16 But in dissent, Justice Scalia
framed the issue differently: "[t]he Court today pretends ... that
we need not fear judicial imposition of homosexual
The Lawrence Court cites, but does not rely on, the 1996
case Romer v. Evans.18 In
Romer, Colorado voters adopted a sweeping constitutional
amendment precluding all legislative, executive, and judicial action
designed to protect persons based on their homosexual or bisexual
orientation, conduct, practices, or relationships. The state argued that
the purpose of the amendment was to respect citizens' freedom of
association and to conserve resources to fight discrimination against
other groups. The U.S. Supreme Court found that the "sheer breadth" of
the amendment was "so discontinuous with the reasons offered for it that
the amendment seems inexplicable by anything but animus toward the class
it affects; it lacks a rational relationship to legitimate state
interest."19 The Court thus held that the
amendment violated the Equal Protection Clause of the U.S.
While the majority opinion in Lawrence is based on due
process liberty and privacy interests, Justice O'Connor, in her
concurrence, indicated that she would have decided the case on equal
protection grounds, as had the Court in Romer:
"This case raises a different issue ... whether, under the Equal
Protection Clause, moral disapproval is a legitimate state interest to
justify by itself a statute that bans homosexual sodomy, but not
heterosexual sodomy. It is not. Moral disapproval of this group, like a
bare desire to harm the group, is an interest that is insufficient to
satisfy rational basis review under the Equal Protection Clause."21
The Defense of Marriage Act. Lawrence is
recent, and it emerged in the midst of other federal developments. Among
the most significant of these is the Defense of Marriage Act (DOMA),
which became effective in January 1996, during the Clinton
administration. DOMA provides as follows:
"No State, territory, or possession of the United States, or Indian
tribe, shall be required to give effect to any public act, record, or
judicial proceeding of any other State, territory, possession, or tribe
respecting a relationship between persons of the same sex that is
treated as a marriage under the laws of such other State, territory,
possession, or tribe, or a right or claim arising from such
"In determining the meaning of any Act of Congress, or of any ruling,
regulation, or interpretation of the various administrative bureaus and
agencies of the United States, the word `marriage' means only a legal
union between one man and one woman as husband and wife, and the word
`spouse' refers only to a person of the opposite sex who is a husband or
DOMA provides that no state is required to recognize a law of any
other state with respect to same-sex "marriage." DOMA also defines the
words "marriage" and "spouse" for purposes of federal law to refer
exclusively to a relationship between a man and a woman. In part, DOMA
is an attempt by Congress to restrict the Full Faith and Credit Clause
of the U.S. Constitution and thus to create a barrier to the inter-state
recognition of same-sex marriage. Questions persist about the reach of
the Full Faith and Credit Clause and the extent to which Congress can
abridge it.23 However, several state
attorneys general have opined that DOMA limits the Full Faith and Credit
Clause and protects a state from being forced to recognize same-sex
marriages and civil unions authorized by other states.24
Congress has repeatedly attempted - and failed - to pass legislation
that would remove DOMA from the jurisdiction of federal courts and would
prevent the U.S. Supreme Court from deciding any question pertaining to
the interpretation or validity of DOMA. For example, the "Marriage
Protection Act," approved by the House of Representatives on July 22,
2004, provided, in relevant part, that "No court created by Act of
Congress shall have any jurisdiction, and the Supreme Court shall have
no appellate jurisdiction, to hear or decide any question pertaining to
the interpretation of, or the validity under the Constitution of,
section 1738C [DOMA] or this section." The Marriage Protection Act died
in the Senate Judiciary Committee.
DOMA stands as a significant barrier to the recognition of samesex
marriages or civil unions under federal law, because DOMA preempts
significant federal benefits available to "spouses."25
The United States Constitution. Lawrence
has opened the door to speculation about whether same-sex marriage is a
right protected by the U.S. Constitution. During the last session, some
members of Congress proposed a constitutional amendment that would have
foreclosed the issue.
In response to Goodridge and "activist judges and local
officials" making an "aggressive attempt to redefine marriage,"
President Bush called for an amendment to the U.S. Constitution.26 The President expressed concern that the courts
could strike down DOMA. Subsequently, 2003 House Joint Resolution 56 was
introduced in the House of Representatives. The Resolution set
"Section I. Marriage in the United States shall consist only of a
union of a man and a woman. Neither this Constitution or the
constitution of any State, nor state or federal law, shall be construed
to require that marital status or the legal incidents thereof be
conferred upon unmarried couples or groups."27
A companion bill, Senate Joint Resolution 26, was introduced in the
Any proposed federal constitutional amendment raises complicated and
controversial issues. On its face, it appears to preempt the power of
states, either legislatively or by court decision, to determine the
legal incidents of same-sex relationships.
Amendment of the U.S. Constitution requires a two-thirds vote in both
the Senate and the House of Representatives and approval by
three-fourths of the states. On July 13, 2004, the Senate voted against
taking up the amendment. On Sept. 30, 2004, the House of Representatives
voted on the amendment, which failed to garner the two-thirds majority
needed for approval.
President Bush's advisors have stated that, in his second term,
President Bush will again propose a federal constitutional amendment
defining marriage as the union of a man and a woman. It is not clear
whether any amendment that might be proposed for the second term would
leave the issue of civil unions to determination by the states.
Same-Sex Marriage: Wisconsin Law
Wisconsin has remained one of the few states expressly to not
prohibit same-sex marriage legislatively. Furthermore, Wisconsin law
provides significant antidiscrimination protection to gays and lesbians,
and Wisconsin courts and lawmakers have the ability to create rights and
remedies for persons in same-sex relationships. Nonetheless, it is clear
that Wisconsin law does not recognize same-sex marriages, civil unions,
or similar arrangements.
Indeed, there is broad agreement that traditional state marriage law
in the United States is intended to apply exclusively to a man and a
woman. For example, even the Goodridge court acknowledged that
the marriage law in Massachusetts was intended to apply exclusively to a
man and a woman.29 The Goodridge
court merely found that traditional law unconstitutional.
Wisconsin Statutes. Wis. Stat. section 765.001(2)
defines marriage as "a legal relationship between 2 equal persons, a
husband and a wife, who owe each other mutual responsibility and
support." There have been several unsuccessful legislative attempts in
Wisconsin to define marriage as a status between one man and one woman.
Two bills initiated in Wisconsin in 1999, Assembly Bill 781 and Senate
Bill 401, did not pass the legislature. More recently, 2003 Assembly
Bill 475 would have amended Wis. Stat. section 765.01(2) to define
marriage expressly as between a man and a woman, by adding the following
language: "It is the public policy of this state that marriage may be
contracted only between one man and one woman." Assembly Bill 475 passed
the Assembly and Senate but was vetoed by Gov. James Doyle on Nov. 7,
Wisconsin statutes give special recognition and protection to the
institution of marriage.30 Marriage is a
legal status in Wisconsin, governed in detail by law. Wis. Stat. section
765.001(2) states that the purpose of the law governing marriage in
Wisconsin is to promote the stability and the best interests of marriage
and the family. In section 765.001(2), the legislature expressly
recognizes that marriage is the foundation of the family and society,
that its stability is basic to morality and civilization, and that "the
consequences of the marriage contract are more significant to society
than those of other contracts...."
Wisconsin does place some statutory restrictions on who is able to
marry. Under Wis. Stat. section 765.02, every person who is at least age
18 may marry, if otherwise competent. However, a marriage may not be
contracted if: 1) either party has a living spouse; 2) the parties are
nearer of kin than second cousins (first cousins may marry if the female
is at least age 55 or the parties submit prescribed documentation that
one of the parties is permanently sterile); or 3) either party has been
divorced in any state less than six months before the marriage. These
restrictions do not include same-sex restrictions.
At the same time, Wisconsin statutes currently provide significant
antidiscrimination protections for gays and lesbians.31 This is an important point. The fact that
Massachusetts has a "strong affirmative policy of preventing
discrimination on the basis of sexual orientation" was a factor for the
Massachusetts court in upholding a right of same-sex marriage in the
Even though Wisconsin does not have express statutory restrictions
prohibiting same-sex marriage, Wis. Stat. section 765.04(1) prevents
Wisconsin residents from avoiding Wisconsin's marriage requirements by
marrying in another state. Section 765.04(1) provides:
"If any person residing and intending to continue to reside in this
state who is disabled or prohibited from contracting marriage under the
laws of this state goes into another state or country and there
contracts marriage prohibited or declared void by the laws of this
state, such marriage shall be void for all purposes in this state with
the same effect as though it had been entered into in this state."
This "marriage evasion statute" creates a significant barrier to
Wisconsin resident couples who would seek recognition in Wisconsin of a
same-sex marriage or civil union entered into elsewhere. By its terms,
the statute is specific to marriage, and it has been argued that it may
not apply to a civil union.33 But that
argument overlooks the clear state legislative policy to reserve to the
legislature the ability to set standards. Wisconsin's marriage evasion
statute places a very heavy burden on anyone who would claim that either
a same-sex marriage or a civil union valid in another state is valid in
Wisconsin. Furthermore, if the Wisconsin Constitution were amended to
prohibit same-sex marriage in Wisconsin, Wisconsin residents who would
travel to another state for validation of a samesex marriage might be
subject to fines and imprisonment under Wis. Stat. section 765.30.
Wisconsin Courts. Wisconsin courts have not
expressly held whether the words "husband" and "wife" in the section
765.001(2) statutory definition of "marriage" refer respectively to a
man and a woman. However, both the Wisconsin Supreme Court and the
Wisconsin Court of Appeals have stated plainly that Wisconsin does not
recognize same-sex marriage.34
In 1994, the Wisconsin Supreme Court decided Annette G. v. Terry
M. (In re Interest of Angel Lace).35
In Angel Lace, the plaintiff sought to adopt her lesbian
partner's child. The child's biological father had consented to the
termination of his parental rights. Based on testimony and other
evidence, the circuit court determined that the adoption would be in the
child's best interest. However, the circuit court also determined that
Wisconsin statutes did not allow the adoption, and so the circuit court
denied the petition for adoption.
The Wisconsin Supreme Court narrowly construed the adoption statutes
and affirmed the circuit court's ruling.36
The supreme court found that:
"Wisconsin does not recognize same-sex marriages. Hence, under the
laws of Wisconsin, [the petitioner and her same-sex partner] are not
married. As a result, [the petitioner] is not [the child's]
Justice Steinmetz, writing for the majority, stated: "[T]he fact that
an adoption - or any other action affecting the child - is in the
child's best interests, by itself, does not authorize a court to grant
the adoption."38 Responding to the argument
that the relevant statute violated the petitioner's right to equal
protection by discriminating against her on the basis of her sexual
orientation or gender, the court stated that "[a]ny legitimate argument
... should be directed at Wisconsin's prohibition of samesex
marriages, not the adoption statutes."39
The three dissenting justices in Angel Lace would have sought
to fashion a judicial remedy to allow for an adoption in the child's
best interests.40 However, the result of
the Angel Lace decision is that the supreme court acted
contrary to the judicially determined best interests of the child.
The following year, in Holtzman v. Knott,41 the Wisconsin Supreme Court again took a clear
position, although perhaps short of holding as a matter of law, that
Wisconsin does not allow same-sex marriage. In addition to demonstrating
the thinking of the Wisconsin court, Holtzman demonstrates the
complex nature of existing same-sex relationships in Wisconsin.
In Holtzman, the parties were women who lived in a same-sex
relationship that they had solemnized in a private ceremony. The couple
decided to rear a child together, and one of the women was artificially
inseminated. After the child was born, the couple shared responsibility
for the child. The child's biological parent later ended the couple's
relationship and then sought a court order to restrain her former
partner from having any contact with the child. Her former partner
thereafter filed a petition seeking custody and visitation of the child.
The court held that Wis. Stat. chapter 767, which applies on the
dissolution of a marriage, could not apply in this case.42 As Justice Abrahamson wrote in the majority
opinion, the parties "were not married and could not marry under the
laws of this state."43 Although the court
was not of one mind about how to remedy the situation, the court agreed
that Wisconsin does not recognize same-sex marriage.
Justice Day, concurring and dissenting, wrote: "[t]here was no
marriage - the ceremony gone through by the mother and her former
companion is a nullity - it is completely unrecognized in our law. To
give any importance to the ceremony by these women should require an act
of the legislature, not an aberrant opinion by this court."44 Justice Steinmetz, concurring in part and
dissenting in part, wrote: "[i]n light of the fact that Wisconsin does
not recognize marriages between individuals of the same sex, it seems
implausible to suggest that the legislature intended to recognize such
relationships as the family unit."45
Wisconsin law, as interpreted by our highest court, recognizes
neither same-sex marriage nor similar arrangements. On this point, our
supreme court is clear.
The Wisconsin Court of Appeals has also addressed the validity of
same-sex marriage. In Phillips v. Wisconsin Personnel
Commission,46 the plaintiff argued
that her employer discriminated against her, within the meaning of the
Wisconsin Fair Employment Act, by denying health insurance coverage for
her lesbian partner. The court stated that "whether to allow or disallow
same-sex marriages ... is a legislative decision, not one for the
courts."47 Because the plaintiff could not
legally marry her female companion, the court held that the employer's
actions did not violate the plaintiff's constitutional rights.48
Wisconsin Attorney General Letters and Memoranda. In
an unpublished letter to Wisconsin Rep. David Travis, dated May 13,
1997, Wisconsin's then Attorney General James Doyle opined that "the
State of Wisconsin follows the generally held view among states that a
valid marriage exists only between persons of the opposite sex." More
recently, in a letter to Wisconsin Rep. Mark Pocan, dated Oct. 21, 2003,
Wisconsin Attorney General Peggy Lautenschlager stated that the proposed
amendment to the Wisconsin Constitution "adds nothing of substance to
Wisconsin Constitution. It is the exclusive function
of a state supreme court to interpret the validity of state legislation
in the context of that state's constitution.49 State courts outside Wisconsin have invalidated
state marriage laws as unconstitutional. For example, in
Goodridge the Massachusetts Supreme Court concluded that the
right of same-sex couples to marry is constitutionally protected.
Article I of the Wisconsin Constitution provides: "[a]ll people are
born equally free and independent, and have certain inherent rights;
among these are life, liberty and the pursuit of
happiness...."50 The Wisconsin Supreme
Court has held that Article I is "substantially the equivalent of the
due process and the equal protection clauses of the Fourteenth Amendment
to the United States Constitution."51
Although the claim might be made that same-sex marriage is a
constitutionally protected right in Wisconsin,52 our Wisconsin courts have shown no inclination
to pursue such an analysis, as the discussion above indicates. Moreover,
federal constitutional developments may make any state constitutional
The initiative to amend the Wisconsin Constitution to define marriage
and to preclude unmarried persons from having the benefit of marriage or
any similar legal status is both unnecessary and bad public policy. It
is unnecessary because same-sex marriages are not recognized in
Wisconsin and are not likely to be, either by our courts or by our
legislature. A fair reading of developments on the subject suggests that
Wisconsin cannot have same-sex marriage forced on it by other
The fact that the proposed constitutional amendment would invalidate
civil unions makes it bad public policy. Civil unions are not recognized
in Wisconsin. However, it would be irresponsible to amend our
constitution to preclude any legal intervention in this area. No
constitution should be amended frivolously. No constitution should be
amended to use the rule of law to inhibit the resolution of social
problems. Wisconsin has relatively progressive laws prohibiting
discrimination against gays and lesbians. In Wisconsin, same-sex couples
do live together in de facto partnerships similar to marriage. Such
partnerships may involve children, as Angel Lace and
Holtzman demonstrate. Such relationships are a reality in
Wisconsin, a reality that creates problems that the legislature and the
courts must be free to address.
Same-sex relationships in Wisconsin are not prohibited by law, but
neither are they regulated by law. In Wisconsin, such relationships
occupy a legal limbo. This legal uncertainty is by itself harmful, not
only to the parties involved, but also to those with whom the parties
are in relationships, in particular their children. The proposed
constitutional amendment in Wisconsin would at the very least inhibit
our legislature and courts from fashioning appropriate remedies to
address the variety of social issues arising from same-sex
relationships, issues that we already face. Indeed, the judicial
opinions in cases like Angel Lace and Holtzman suggest
that our supreme court, while exercising responsible restraint, is
looking for specific legislative direction. Our legislature would be
better advised to do the real work necessary to give our courts
direction on the de facto problems that face them.
1See Wis. Const. art. XII,
2852 P.2d 44 (Haw. 1993).
3See ABA Section of Family
Law, A White Paper: An Analysis of the Law Regarding Same-Sex
Marriage, Civil Unions, and Domestic Partnerships (2004).
4See Baker v. State, 744
A.2d 864 (Vt. 1999); Vt. Stat. Ann. tit. 15, ch. 23.
5Vt. Stat. Ann. tit. 15, §
1204 (2000). See Elaine M. De Franco, Comment, Will a
Wisconsin Court Recognize a Vermont Civil Union?, 85 Marq. L. Rev.
251, 273 (2001).
6798 N.E.2d 941 (Mass. 2003).
7See id. But see also
Cote-Whitacre v. Department of Pub. Health, C.A. No. 04-2656G
(Suffolk County Super. Ct. Aug. 18, 2004) (holding constitutional
Massachusetts statute that prevents nonresident same-sex couples from
obtaining marriage licenses if marriage is not legal in their
Following the court's ruling in Goodridge, a number of
Massachusetts legislators filed suit in federal court seeking to enjoin
the justices from enforcing the Goodridge ruling.
SeeLargess v. Supreme Judicial Court for the State of
Massachusetts, 317 F. Supp. 2d 77 (2004), The lawmakers claimed
that the court violated the Guarantee Clause of the U.S. Constitution by
depriving the plaintiffs of their right to a republican form of
government. Id. at 79. The district court denied the motion for
injunctive relief, ruling that it is the exclusive function of the
judicial branch, and therefore the Supreme Judicial Court, to decide
matters relating to the Massachusetts Constitution. Id. at 84.
The U.S. Court of Appeals for the First Circuit affirmed the district
court's denial of injunctive and declaratory relief. Largess v.
Marshall, 373 F.3d 219 (1st Cir. 2004). The U.S. Supreme Court
denied certiorari in the matter. Largess v. Supreme Judicial Court
of Massachusetts, No. 04-020 (U.S. Nov. 29, 2004).
82003 Mass. S.B. No. 2175.
9Opinion of the Justices to the
Senate, 802 N.E.2d 565, 572 (Mass. 2004).
10As of November 2004, 40 states
had enacted laws defining marriage as between a man and a woman.
See Kavan Peterson, 50-State Rundown on Gay Marriage
(Feb. 4, 2005).
11See id. A Louisiana
district court struck down the amendment to the Louisiana Constitution,
finding that the state constitution prevents a constitutional amendment
from having more than one objective and that this amendment contained
two: defining marriage and preventing the state from recognizing a legal
status substantially similar to that of marriage for unmarried persons.
The challenge is currently before the Louisiana Supreme Court. Other
states with singleobjective requirements for constitutional amendments
may face similar legal challenges. See Wis. Const. art. XII,
§ 1 ("[I]f more than one amendment be submitted, they shall be
submitted in such manner that the people may vote for or against such
amendments separately."); Milwaukee Alliance v. Elections Bd.,
106 Wis. 2d 593, 607-08, 317 N.W.2d 420 (1982) (several distinct
propositions may be submitted to electorate as one constitutional
amendment if they relate to same subject matter and are designed to
accomplish one general purpose).
supra note 10.
13539 U.S. 558 (2003).
15In so holding, the court
overruled Bowers v. Hardwick, 478 U.S. 186 (1986), in which the
Supreme Court had upheld a Georgia statute that criminalized acts of
16539 U.S. at 578.
17Id. at 604. Baker
v. Nelson, 191 N.W.2d 185 (Minn. 1971), is instructive.
Baker is an older case from a neighboring jurisdiction in which
the Minnesota Supreme Court held that same-sex marriages are neither
authorized by that state's statutes nor constitutionally compelled. The
parties in Baker, a same-sex couple who were refused a marriage
license, challenged this refusal as a violation of the Equal Protection
Clause of the U.S. Constitution. The parties appealed to the U.S.
Supreme Court, which dismissed the appeal "for want of substantial
federal question." Baker v. Nelson, 409 U.S. 810 (1972). The
dismissal arguably has some precedential value, but it is not
18517 U.S. 620 (1996).
19Id. at 632.
20Id. at 635-36.
21Lawrence, 539 U.S. at
582 (O'Connor, J., concurring).
2228 U.S.C. § 1738C; 1
U.S.C. § 7.
23"Full faith and credit shall be
given in each state to the public acts, records, and judicial
proceedings of every other state. And the Congress may, by general laws,
prescribe the manner in which such acts, records, and proceedings shall
be proved, and the effect thereof." U.S. Const. art. IV, § 1.
See also De Franco, supra note 5, at 278-80. For an
excellent discussion of the issue, see R. Lea Brilmayer, Full Faith
and Credit, Family Law, and the Constitutional Amendment Process,
Testimony before the U.S. Senate Committee on the Judiciary,
Subcommittee on the Constitution, Civil Rights and Property Rights (Mar.
3, 2003), at www.law.yale.edu/outside/html/Public_Affairs/452/senatetestimony.pdf.
242000 Ala. Op. Att'y Gen. 129
(Apr. 20, 2000); 2000 Ill. Op. Att'y Gen. 00-017 (Dec. 29, 2000); 1996
Neb. Att'y Gen. 96090 (Dec. 30, 1996); 1996 N.C. AG LEXIS 39 (May 14,
25A comprehensive discussion of
the federal statutory rights, benefits, and privileges available to
spouses and married persons is beyond the scope of this article. For
discussion, see ABA Section of Family Law, A White Paper: An
Analysis of the Law Regarding Same-Sex Marriage, Civil Unions, and
Domestic Partnerships (2004), and U.S. General Accounting Office,
Defense of Marriage Act: Update to Prior Report (Jan. 23,
26The transcript is available
online at www.whitehouse.gov/news/releases/2004/02/20040224-2.html.
272003 H.J. Res. 56.
28A second resolution was later
introduced in the Senate, S.J. Resolution 30, with slightly altered
language that its sponsors argued would not invalidate statelevel civil
unions or domestic partnerships.
29Goodridge, 798 N.E.2d
at 952-53. The point is reinforced by several attorneys general opinions
on this issue. Probably the best summary is from New York: 2004 N.Y.
Informal Op. No. 2004-1, 2004 N.Y. AG LEXIS 5 (Mar. 3, 2004).
30A detailed discussion of the
many rights and obligations that are entailed in marital status is
beyond the scope of this article. A brief list includes: family leave
benefits, damages for actions based on spousal status, child custody and
visitation rights, adoption, status to make medical decisions, rights on
separation or divorce, immigration and residency, tax benefits,
inheritance rights, crime victim recovery benefits, tort recovery
rights, domestic violence relief, judicial protection (for example,
immunity from testifying against one's spouse), employment benefits, and
property rights during the relationship. For further discussion of the
legal benefits of marriage, see Goodridge, 798 N.E.2d at
31See, e.g., Wis. Stat.
§§ 943.012(3)-(4), 939.645(1)(b), 756.001(3), 632.68(10)(a),
234.29, 230.18, 230.01(2), 227.10(3), 224.77(1)(o), 146.025(7)(c)1.,
118.85(2)(b), 118.81(12)(b), 118.40(4)(b)2., 118.13(1), 111.70(2),
111.32(13)(m), 111.31(1), 111.075(2)(b), 106.52(3), 106.50(1), 66.1011,
66.1201(2m), 66.1213(3), 66.1301(2m), 66.1331(2m), 66.1333(3)(e)2.,
38.23(1), 36.12(1), 21.35, 16.765(1), 15.04(1)(g); see also De
Franco, supra note 5, at 273, 279; Barbara Cox, Same-Sex
Marriage and Choice of Law: If We Marry in Hawaii, Are We Still Married
When We Return Home?, 1994 Wis. L. Rev. 1033, 1080-81 (1994). The
legislative intent governing Wis. Stat. chapter 994, "Crimes Against
Sexual Morality," reads as follows:
"The state recognizes that it has a duty to encourage high moral
standards. Although the state does not regulate the private sexual
activity of consenting adults, the state does not condone or encourage
any form of sexual conduct outside the institution of marriage. Marriage
is the foundation of family and society. Its stability is basic to
morality and civilization, and of vital interest to society and this
32"In this case, we are
confronted with an entire, sizeable class of parents raising children
who have absolutely no access to civil marriage and its protections
because they are forbidden from procuring a marriage license. It cannot
be rational under our laws, and indeed it is not permitted, to penalize
children by depriving them of State benefits because the State
disapproves of their parents' sexual orientation." Goodridge,
798 N.E.2d at 964.
33See De Franco,
supra note 5, at 265.
34See Holtzman v. Knott,
193 Wis. 2d 649, 533 N.W.2d 419 (1995); Phillips v. Wisconsin
Personnel Comm'n, 167 Wis. 2d 205, 482 N.W.2d 121 (Ct. App. 1992);
Annette G. v. Terry M. (In re Interest of Angel Lace), 184 Wis.
2d 492, 516 N.W.2d 678 (1994).
35184 Wis. 2d 492, 516 N.W.2d 678
36Id. at 519.
Wisconsin's statutory requirements for adoption are found in chapter 48.
Section 48.01 provides that chapter 48 is to be liberally construed to
effectuate the chapter's stated purposes and that "the paramount goal of
this chapter is to protect children and unborn children." Wis. Stat.
§ 48.01(1), (1)(a).
37Angel Lace, 184 Wis.
2d at 504 n.1.
38Id. at 505.
39Id. at 518.
40Id. at 521-40.
41193 Wis. 2d 649, 533 N.W.2d 419
42Id. at 681.
43Id. at 680 n.26.
44Id. at 701.
45Id. at 720.
46167 Wis. 2d 205, 482 N.W.2d 121
(Ct. App. 1992).
47Id. at 213.
48Id. at 226.
49See supra note 7
(discussion of Largess).
50Wis. Const. art. I, §
51State ex rel. Sonneborn v.
Sylvester, 25 Wis. 2d 177, 130 N.W.2d 569 (1964).
52See, e.g., Arizona v.
Evans, 514 U.S. 1, 8 (1995) ("state courts are absolutely free to
interpret state constitutional provisions to accord greater protection
to individual rights than do similar provisions of the United States