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  • WisBar News
    August 06, 2014

    Wisconsin Supreme Court Upholds Same-Sex Domestic Partnership Status

    Aug. 6, 2014 – The Wisconsin Supreme Court has unanimously ruled that a Wisconsin's same-sex domestic partnership law does not violate the state’s constitutional ban on same-sex marriage, a ruling that comes amidst litigation challenging same-sex marriage bans in several states, including Wisconsin.

    In June, Judge Barbara Crabb of the U.S. District Court for the Western District of Wisconsin declared that Wisconsin’s same-sex marriage is unconstitutional. That decision is pending appeal, as are cases involving same-sex marriage bans nationwide.

    Legal commentators guess a challenge to same-sex marriage bans will land at the U.S. Supreme Court, which has already made significant rulings on same-sex marriage. But the High Court has yet to consider a direct challenge to a same-sex marriage ban.

    If the Court were to declare same-sex marriage bans unconstitutional, the Wisconsin Supreme Court’s recent ruling on domestic partnerships would still be relevant for those seeking to be domestic partners rather than married same-sex couples.

    Marriage Amendment vs. Domestic Partnership Law

    In 2006, Wisconsin voters passed a “marriage amendment” that defined marriage as between “one man and one woman.” Under the amendment, any legal status that is “substantially similar” to marriage is not valid or recognized in Wisconsin.

    Three years later, under Democratic Gov. James Doyle, the Wisconsin Legislature enacted a domestic partnership law, which grants limited legal rights to same-sex couples who share a common residence and register as “domestic partners.”

    For instance, 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 from work to care for the other. Domestic partners can also sue for the wrongful death of their domestic partner, or obtain family visitation rights at hospitals.

    The law, under Wis. Stat. chapter 770, specifically declared that “the legal status of domestic partnership … is not substantially similar to that of marriage.”

    However, members of Wisconsin Family Action (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.”

    Though current Gov. Scott Walker is the named defendant, Walker and Wisconsin Attorney General J.B. Van Hollen declined to defend the law. Fair Wisconsin Inc. and its members intervened in the case to defend it. The efforts were successful.

    Unanimous Decision

    In Appling v. Scott Walker, 2014 WI 96 (July 31, 2014), the supreme court ruled that same-sex domestic partnerships are not “substantially similar” to marriage, because marriage confers many rights that domestic partners are not entitled to receive.

    The court rejected Appling’s argument that domestic partnerships are substantially similar to marriage based on similarity of “constituent elements” that make the marriage relationship legal, such as age, mutual consent, and exclusivity between two people.

    The court noted, as in previous cases challenging legislation (see Voter ID and Act 10), “that the challengers to a statute face a very difficult task.”

    They must prove that a statute is unconstitutional beyond a reasonable doubt, Justice Patrick Crooks explained in his opinion, to overcome a presumption of constitutionality.

    “Such a framework for analysis has doomed many challenges, and it dooms this one as well,” Justice Crooks wrote, noting the plaintiffs could not overcome the burden.

    The court noted the differences in the statutory rights and obligations of domestic partners as opposed to married couples in Wisconsin. For instance, unlike spouses, domestic partners do not have an obligation to provide mutual obligation and support.

    It also concluded that the framers of the marriage amendment, ultimately ratified by the voters of Wisconsin, did not intend to outlaw domestic partnerships, as evidenced from the amendment’s plain language and the public debates during the ratification process.

    For instance, Justice Crooks quoted a statement issued by the office of Sen. Scott Fitzgerald, a Republican who supported the marriage amendment.

    Sen. Fitzgerald’s statement stated, in pertinent part: “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 voters … the legislature will still be free to pass legislation creating civil unions if it so desires.” Crooks noted similar examples.

    “This representative sampling of messages … makes clear that in response to concerns about what exactly the Amendment would prohibit, such advocates answered directly that the Amendment would not preclude a legislative decision to create a legal mechanism giving unmarried couples in intimate relationships specific sets of rights and benefits,” Justice Crooks noted for the unanimous court.

    The court also noted that in drafting the domestic partnership law, legal advisors and experts concluded that that legislation would not conflict with the marriage amendment.

    “We affirm the court of appeals’ holding that Chapter 770 is constitutional, based on the presumption of constitutionality, the Plaintiffs’ failure to meet the burden of proof, and the evidence we have reviewed in accord with the Dairyland decision, which establishes the framework we use to interpret constitutional provisions,” Justice Crooks wrote.


    Justice Patience Roggensack, who recently authored two opinions in cases challenging the state’s voter ID law, concurred but wrote separately to reiterate the legal framework that courts must use when legislation is challenged on constitutional grounds.

    “I do so to illustrate that judicial decision-making is not based on whether the statute reviewed is grounded in a liberal legislative philosophy or in a conservative legislative philosophy,” Justice Roggensack wrote.

    “But rather, judicial decision-making is driven by foundational legal principles that require challengers to overcome the statute’s presumption of constitutionality and to prove that the statute is unconstitutional beyond a reasonable doubt. …”

    Chief Justice Shirley Abrahamson concurred but wrote separately to “call the reader’s attention” to the fact that the U.S. Court of Appeals for the Western District of Wisconsin has declared Wisconsin’s marriage ban unconstitutional under the U.S. Constitution.

    Related Articles

    Just Married? The Current Legal Status of Wisconsin Same-Sex MarriagesWisBar News, June 20, 2014

    Same-Sex Marriage Decision: Federalism Does Not Trump Constitutional RightsWisBar News, June 9, 2014

    Solutions: Federal Benefits for Married Same-Sex CouplesWisconsin Lawyer, January 2014

    Same-Sex Marriage Decision Impacts Wisconsin, Despite MisconceptionsWisBar InsideTrack, Aug. 21, 2013

    The Gay Divorcée: When Same-Sex Marriages Dissolve in WisconsinWisconsin Lawyer, July 2012

    Wisconsin’s Domestic Partnership Law Survives Constitutional ChallengeWisBar News, Jan. 2, 2012 

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