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  • InsideTrack
  • January 02, 2013

    Wisconsin's Domestic Partnership Law Survives Constitutional Challenge

    In 2009, Wisconsin passed a domestic partnership law granting certain rights to same-sex couples who live together. A lawsuit challenged the law as unconstitutional. Recently, a state appeals court upheld the law in a case likely headed for the Wisconsin Supreme Court.

    Joe Forward

    Wisconsin's Domestic Partnership Law Survives   Constitutional ChallengeJan. 2, 2012 – Wisconsin’s domestic partnership law, which grants rights to same-sex couples who register as domestic partners, remains intact despite a constitutional challenge alleging the law violates Wisconsin’s constitutional marriage amendment, approved by voters in 2006.

    Under the marriage amendment, only marriages “between one man and one woman” are recognized as valid in Wisconsin, and legal statuses “identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.”1

    Three years after enactment of the marriage amendment, in 2009, the Wisconsin Legislature passed and enacted a domestic partnership law, which declared that “the legal status of domestic partnership … is not substantially similar to that of marriage.”2

    Members of Family Action Wisconsin (WFA), including WFA President Julaine Appling, immediately filed a lawsuit alleging that a domestic partnership status is indeed a legal status substantially similar to that of marriage, which violates of the marriage amendment.

    A circuit court upheld the domestic partnership law as constitutional. The appeals court certified the case to the Wisconsin Supreme Court in July 2012. But the supreme court in October denied review (5-2), sending the case back to the appeals court.

    In Appling v. Doyle, 2011AP1572 (Dec. 20, 2012), the District IV Wisconsin Court of Appeals upheld the domestic partnership law. In its decision, the three-judge panel noted that same-sex partners do not have substantially similar rights as married couples.

    The plaintiffs have vowed to appeal to the Wisconsin Supreme Court, which can vote to review the appeals court decision despite denying review on certification in July. The state supreme court also denied review of the case on petition for original jurisdiction in 2009.

    Domestic Partnerships in Wisconsin

    Same-sex adults who share a common residence, despite ownership interests, can file a declaration of “domestic partnership,” known as the same-sex domestic partnership registry.3

    Approximately 2,000 domestic partnerships were filed through 2011, mostly in Dane and Milwaukee counties.4 About 70 percent of domestic partnerships are between women.5

    “More than 40 areas of rights, benefits, and responsibilities are affected by entering into a same sex domestic partnership relationship,” Madison lawyer Howard Sweet wrote in a 2009 Wisconsin Lawyer article, “Understanding Domestic Partnerships in Wisconsin.”

    Sweet lists some of the major statutory provisions affected by the domestic partnership law. For instance, same-sex domestic partners can hold property in joint tenancy and inherit property through Wisconsin’s intestacy and other inheritance and probate laws.

    The law recognizes same-sex domestic partners as family members under the Wisconsin Family and Medical Leave Act, meaning one domestic partner can take leave to care for the other. Further, domestic partners can sue for the wrongful death of their domestic partner.

    However, same-sex domestic partners do not have all the rights or obligations given to spouses directly under Wisconsin law. For instance, same sex domestic partners do not benefit from the state or federal tax deductions or credits that are available to married spouses.6

    “Perhaps the most significant matters not addressed relate to ongoing property ownership, control, and management issues during the domestic partnership and to the division of property on the termination of the domestic partnership,” Sweet observed in his article.

    Domestic Partnerships are Substantially Different than Marriage

    The plaintiffs, Appling et al., argued the eligibility and formation requirements of domestic partnerships create a legal status substantially similar to that of marriage.

    “Appling contends that the particular domestic partnership law at issue here is unconstitutional because the means it uses to identify eligible couples and formalize their relationships is too similar to the corresponding requirements of marriage,” Judge Paul Lundsten explained.

    The defendants, including former Gov. Jim Doyle, argued that the legal status of domestic partnerships is not substantially similar to that of marriage because the rights, obligations, and termination requirements are different than marriage. The appeals court agreed.

    “The plain meaning of the marriage amendment supports the conclusion that ‘legal status’ refers not only to eligibility and formation requirements, but also to rights and obligations and, for that matter, termination requirements,” Judge Lundsten wrote.

    The panel examined “voter intent” in passing the marriage amendment, concluding that informed voters would have understood the marriage amendment as not banning domestic partnerships with a limited subset of the rights and obligations associated with marriage.

    The panel also compared the eligibility, formation, rights, obligations, and termination requirements of domestic partnerships with those of marriage to conclude that the legal statuses of the two are substantially different, noting 33 specific differences.

    “It is not necessary to list that many here to demonstrate that, regardless of the precise meaning of the term ‘substantially similar,’ the rights and obligations of marriage are not substantially similar to the rights and obligations of domestic partnerships,” Lundsten wrote.

    Appling also argued that the domestic partnership law should be accorded little weight because the make-up of the legislature that passed the domestic partnership law in 2009 was different from the legislatures that championed the marriage amendment in 2003 and 2005.

    “Appling’s point is an interesting one, but we decline to adopt it,” wrote Judge Lundsten, noting that Appling’s proposal may conflict with the deference courts must give legislative acts.

    The case is likely to be heard by the Wisconsin Supreme Court. Until then, the status of domestic partnership law remains constitutional and effective.

    Joe Forward is the legal writer for the State Bar of Wisconsin.


    1 Wis. Const. Art. XIII, § 13.

    2 Wis. Stat. § 770.001 (declaration of policy).

    3 Id. at § 770.01.

    4 Wisconsin Department of Health Services, Domestic Partnerships, Data from 2009 through 2011, available at

    5 Id.

    6 Wisconsin Department of Revenue, Effect of Recent IRS Ruling on Wisconsin Domestic Partnerships (June 9, 2010),

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