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    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.

    Carl RasmussenSusan Collins

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    Wisconsin Lawyer
    Vol. 78, No. 3, March 2005

    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.

    just married signby Carl J. Rasmussen & Susan L. Collins

    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 legal status.

    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 in Wisconsin.

    2003 Wisconsin Assembly Joint Resolution 66

    2003 Wisconsin Assembly Joint Resolution 66 states:

    Rasmussen

    Susan L. Collins

    Collins

    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 this state."

    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 November 2006.

    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.12

    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 marriage...."17

    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. Constitution.20

    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 relationship.

    ...

    "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 a wife."22

    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 forth:

    "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 Senate.28

    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, 2003.

    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 Goodridge decision.32

    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] stepparent."37

    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 existing statutes."

    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 developments irrelevant.

    Conclusion

    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 states.

    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.

    Endnotes

    1See Wis. Const. art. XII, § 1.

    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 domicile).

    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 Laws, www.stateline.org (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).

    12See Peterson, supra note 10.

    13539 U.S. 558 (2003).

    14Id.

    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 consensual sodomy.

    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 determinative.

    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, 1996) (unpublished).

    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, 2004), www.gao.gov/atext/d04353r.txt.

    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 954-57.

    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 state."

    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 (1994).

    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 (1995).

    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, § 1.

    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 Constitution").




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