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  • WisBar News
    August 19, 2009

    Wisconsin Supreme Court to consider construction of ‘marriage amendment’

    A challenger to the constitutional amendment prohibiting same-sex marriage in Wisconsin charges that voters were asked to consider two unrelated questions in violation of the constitution’s “separate amendment” rule. In its brief, the Wisconsin Attorney General disagrees.

    Aug. 19, 2009 – The Wisconsin Supreme Court is set to consider the proper manner in which a constitutional amendment is drafted and presented to the voters.

    A challenger to the 2006 “marriage amendment” prohibiting recognition of same-sex marriage in Wisconsin charges that voters were improperly asked to consider two unrelated questions in violation of the state constitution’s “separate amendment” rule.

    But in its brief filed Aug. 13, the Wisconsin Attorney General responded that the court has previously rejected this argument, and asserts the marriage amendment conforms to the longstanding requirements for ballot measures proposing changes to the constitution.

    Two questions or one?

    In his brief, plaintiff William McConkey refers to the “separate amendment” requirement of the Wisconsin Constitution in Article XII, Section 1, which instructs that “if more than one amendment be submitted, they shall be submitted in such manner that the people may vote for or against such amendments separately.”

    Voters suffered a voting rights injury, McConkey alleges, when they were forced to give a single answer to the proposed marriage amendment comprising “two separate and distinct” questions: (1) “Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state,” and (2) “A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.”

    McConkey demonstrates the distinction between the two propositions by application of a two-part test he asserts Wisconsin courts use to review ballot measures’ compliance with the “single amendment” rule.

    Under the first prong, he explains, a ballot question must be “aimed at a single purpose.” McConkey says the purpose is best determined by looking at how the Legislature described the amendment in the title of those joint resolutions it approved prior to submitting the matter to the voters.

    In this case, the Legislature described the amendment as creating a new section of the constitution “providing that only a marriage between one man and one woman shall be valid or recognized as a marriage in this state.”

    The second prong requires interrelated and interdependent propositions, “such that if they had been submitted as separate questions, the defeat of one question would destroy the overall purpose of the multi-proposition proposal,” McConkey continued, citing State ex rel. Hudd v. Timme, 54 Wis. 318 (1882), and Milwaukee Alliance Against Racist & Political Repression v. Elections Bd. of Wis., 106 Wis. 2d 593 (1982).

    McConkey argued that the amendment’s first proposition (“one man and one woman”) completely fulfilled the Legislature’s stated purpose. The second proposition (“a legal status identical or substantially similar”), he said, served another purpose: “to restrict future legislatures from ever confronting the crux of the controversy: what comprehensive legal protections will be given to relationships that exist outside of marriage?”

    Creating the dilemma that the “separate amendment” requirement was intended to prevent, McConkey said voters might agree that same-sex marriages do not deserve recognition, but may want the Legislature to grant legal protections, rights, and responsibilities of civil marriage in other contexts to unmarried individuals.

    “For instance, a voter might view marriage as a primarily religious institution and based on their faith’s teaching regarding homosexuality feel that same-sex couples should not be allowed to marry, but at the same time might recognize that the legal incidents to the civil contract of marriage would benefit the community as a whole if they were available to same-sex couples,” McConkey wrote.

    “Similarly, another voter might find it appropriate to deny same-sex couples access to the legal status of marriage, yet wish to leave the door open for the legislature to protect heterosexual elderly couples who, if they were to marry, would lose substantial income based on the Social Security record or pension of a deceased wage-earning spouse,” he added.

    Broader ‘purpose’ standard

    McConkey would have the court improperly narrow its inquiry into the purpose of an amendment by looking at just the joint resolutions, the attorney general charged in its brief.

    A reviewing court should find the purpose of a constitutional amendment from a variety of sources, including the plain meaning of its text, but also the legislative debates surrounding it, news accounts, and other extrinsic sources, the attorney general argued.

    From these different sources, the attorney general said that the amendment’s purpose is “not only to limit the existing legal status of marriage to opposite-sex unions, but to preserve marriage as a unique legal status.” The two propositions comprising the amendment advance this purpose by limiting the existing legal status of “marriage” to heterosexual couples, in the first instance, and ensuring that the limitation is not nullified by legislatively-created “marriage by another name,” in the second.

    Broader standard for ‘single subject’

    The attorney general further explained that the standard for separate amendment cases is not as stringent as McConkey asserts.

    The attorney general cited Hudd in which the supreme court upheld an amendment containing four distinct propositions, addressing legislators’ terms, the frequency of legislative sessions, and even legislators’ salaries. The Hudd court concluded the four propositions furthered the general purpose of changing the Legislature from annual to biennial sessions, the attorney general reported.

    “In reaching this conclusion, the Hudd court showed that the concept of ‘relatedness’ as it is applied in the single subject rule context, is broader than McConkey portrays it, and easily encompasses the relation between the two parts of the marriage amendment at issue here,” the attorney general wrote.

    The attorney general also referred to Milwaukee Alliance in which the supreme court sustained an amendment enabling the Legislature to authorize courts to deny or revoke bail for certain criminal defendants and also permitted the courts to set conditions, including bail, for the release of the accused.

    “[S]ubmitting both propositions to the same ballot question was proper because the purpose of the amendment was to shift from the limited concept of bail to a more comprehensive concept of ‘conditional release,’” the attorney general said of the supreme court’s decision.

    The attorney general said that the Milwaukee Alliance plaintiffs – like McConkey – argued that because voters could adopt the propositions separately, they should be separately presented to the electorate. “[The supreme court] rejected that argument as ‘unrealistic,’” the attorney general observed.

    Moreover, the supreme court stated in Milwaukee Alliance that the Legislature has discretion in the way it drafts its amendments, the attorney general noted.

    Debate over Zimmerman

    The parties disagreed over the significance of State v. ex rel. Thomson v. Zimmerman, 264 Wis. 644 (1953), in which the supreme court found a violation of the separate amendment rule.

    In Thomson, the court presumed that the disputed amendment’s purpose was to take geographic area as well as population into account when apportioning senate districts. But the court then found that purpose diverged from the amendment’s other provisions related to the method of assigning assembly district boundaries and the inclusion of untaxed Indians and members of the armed forces when calculating population.

    McConkey asked the justices to find more than one purpose if, like in Thomson, they determine that the defeat of the marriage amendment’s second provision would not destroy the amendment’s asserted overall purpose. If a single purpose is found, McConkey then asked that the justices consider whether the two propositions are interrelated as posited under Thomson.

    Offering an answer to this inquiry, McConkey wrote, “[T]here is nothing inherent in a statement of whose marriages will be recognized as valid by the state that requires the determination of whether and to what extent the legislature should be foreclosed from crafting a legal status identical or substantially similar to marriage for unmarried individuals.

    “Likewise, deciding whether to limit the legislature’s power to create a scheme through which ‘unmarried individuals in Wisconsin may gain most or all of the legal protections provided to unmarried couples in this state does not require a determination of whose marriages are considered valid by the state in the first place,” McConkey added.

    But the attorney general disputed the strength of the analogy between this case and Thomson, making several distinctions. Specifically, the attorney general said that the Legislature in this case – unlike in Thomson – provided a clear statement communicating the amendment’s purpose.

    Further, the attorney general argued the marriage amendment’s two provisions are interdependent such that separating them would destroy the overall purpose of the amendment.

    “If the state government were empowered to create or recognize a legal status identical or substantially similar to marriage, and make it available to same-sex couples, then the limitation on the marriage relation to opposite-sex couples would cease to have practical significance,” the attorney general explained.


    The attorney general filed a separate brief to challenge McConkey’s standing in this suit.

    McConkey asserted that he would not have voted for either of the marriage amendment’s two provisions. Accordingly, the attorney general asserts that McConkey has failed to demonstrate how the alleged defect of the ballot measure prevented him from fully expressing his preferences. A proper plaintiff would be one who wanted to vote “yes” for one of the provisions and “no” to the other, the attorney general explained.

    The attorney general said that the circuit court erred when it denied the motion to dismiss McConkey’s suit for lack of standing on the ground that every elector has standing to litigate an alleged violation of Article XII, Section 1, regardless of how he or she voted.

    Oral arguments before the Wisconsin Supreme Court are scheduled for Nov. 3, 2009.

    Alex De Grand is the legal writer for the State Bar of Wisconsin.

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