The seven-member Wisconsin Supreme Court has rejected a state constitutional challenge to the Wisconsin Domestic Partnership Act. The July 31 ruling in Appling v. Walker, 2014 WI 96, 2014 Wisc. LEXIS 533, in an opinion by Justice N. Patrick Crooks, Jr., held that the state’s marriage amendment, passed in 2006, did not prevent the legislature from creating a legal status for same-sex couples that would carry many, but not all, of the rights of marriage. The ruling came just weeks after a federal district court ruled in Wolf v. Walker, 2014 WL 2558444 (W.D. Wis. June 6, 2014), that the Wisconsin Marriage Amendment violates the 14th Amendment of the U.S. Constitution, a ruling that the state is now appealing to the Chicago-based 7th Circuit Court of Appeals. Curiously, Justice Crooks’ opinion for the court did not mention the federal ruling or the recent wave of marriage equality decisions, prompting Chief Justice Shirley S. Abrahamson to write a short concurring opinion “to call the reader’s attention to these developments in the law.”
Although Governor Scott Walker and members of his administration were now the named defendants in the case, he would certainly not consider this ruling a victory, since he and the other state government defendants had filed a motion to withdraw from the case on the ground that his administration, which was not involved in the enactment of the challenged law, agreed with the plaintiffs that it was unconstitutional. The plaintiffs, proponents of the marriage amendment, had originally filed suit against the previous Democratic administration which had enacted the challenged law. The lower court had allowed Lambda Legal’s Chicago office to intervene as representatives of Fair Wisconsin Inc. (a gay rights group) and several individual defendants who would sustain tangible losses if their domestic partnerships and attendant benefits were invalidated by the court.
Alliance Defending Freedom, a religious litigation firm, presented the argument for the plaintiffs on appeal, using the same attorney who had defended Virginia’s same-sex marriage ban in the 4th Circuit, Austin Nimocks. Christopher Clark from Lambda’s Chicago office argued for the intervenor-defendants, with local attorneys Brian Butler, Barbara Neider, and Stafford Rosenbaum LLP of Madison, Wisconsin, participating on the brief. Dane County’s Corporation Counsel office filed an amicus brief defending the partnership statute as well, and amicus briefs came in from a range of organizations, including the ACLU and the LGBT Chamber of Commerce.
When the Marriage Amendment was passed in 2006, some public employees in Wisconsin were already receiving domestic partnership benefits and such benefits were a hot subject of collective bargaining with unions represented public workers in the state. The legislature proposed the marriage amendment in reaction to same-sex marriage becoming available in Massachusetts in May 2004, as well as the prior enactment of a civil union law in Vermont that gave civil union partners a status and panoply of state-law rights substantially similar to marriage. The amendment, which passed by a comfortable margin (59%-41%), provided that only the union of one man and one woman would be valid or recognized as a marriage in Wisconsin, and that “a legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.”
During the amendment campaign, opponents charged that the amendment would end partnership benefits for public employees and would prevent the legislature from passing a civil union act. Proponents of the amendment, including the lead plaintiff in this case, Julaine K. Appling, countered these arguments by stating that the amendment was not intended to take away benefits from anybody. They said that the legislature would be free to extend benefits to same-sex couples, so long as they didn’t create a “status” that was identical or substantially similar to marriage. Both legislative leaders and private sector proponents such as Appling reiterated these points, and accused the opponents of distorting the meaning of the proposed amendment. In fact, one legislative sponsor of the amendment even stated that the legislature could pass a civil union act, so long as it was not a “Vermont-style” act that provided all the state law rights of marriage.
After the amendment passed, the state government changed hands from Republican to Democratic control. The new majority enacted the Domestic Partnership Act after carefully considering the limitations imposed by the Marriage Amendment. Taking the amendments’ proponents at their word, they carefully structured the statute to create a partnership registration system that did not itself confer any rights on partners, and then amended various state laws to extend existing benefits to registered domestic partners. The partnership system was made available only to same-sex couples, and many rights associated with marriage, such as joint tax filing, were not amended to extent to registered partners, thus preserving substantial differences.
Appling and other proponents of the marriage amendment filed suit, arguing that the statute created a status substantially similar to marriage because “the similarities it shares with marriage are actually ‘the constituent elements that make the legally recognized marital relationship what it is — the component parts of the relationship.” These component parts they identified as the requirement that a domestic partnership be limited to two people over a certain age, competent to consent, who are in an exclusive relationship of specified sexes and who are not already closely related. The plaintiffs argued that it was irrelevant that the number of rights and benefits extended to domestic partners were substantially fewer than those afforded married couples, because the Marriage Amendment was concerned with the creation of a “status” that was like marriage in terms of these “component parts.” The defendants responded that this contradicted what proponents had argued during the election, that the public passed the amendment having been advised that it would not prevent the legislature from granting benefits to same-sex couples, and of course they emphasized the limited number of rights and benefits that went with partnership. Indeed, with the demise of the Defense of Marriage Act, the difference between domestic partnership and marriage is even greater than it was when the statute was passed, since the federal government will not recognize domestic partnerships for any purpose of federal law.
The trial and intermediate appellate courts both ruled against the plaintiffs, and the Supreme Court unanimously affirmed this result.
The Supreme Court analysis started from the proposition that statutes enjoy a presumption of constitutionality, and the plaintiffs bear a heavy burden to show that the challenged statute is unconstitutional beyond any reasonable doubt. In addition, the court pays attention to the context in which a measure is adopted, both in figuring out the meaning of constitutional language and the meaning of statutory language. In this case, the issue was whether domestic partnerships were “substantially similar” to marriages, as the plaintiffs were not arguing that they are identical.
Justice Crooks found that by using the phrase “substantially similar” in the amendment, the drafters intended that “a status that is merely similar is not meant to be prohibited. The plain language of the Amendment,” he continued, “indicates that the framers and the voters intended to prohibit a status that gives a domestic partner a sum total of legal rights, duties, liabilities, and other legal relations that is more than just similar to the sum total of a married person’s legal rights, duties, liabilities, and other legal relations.”
Once the comparison was made, it was clear that the form of domestic partnership enacted in Wisconsin was not “substantially similar” to marriage. Unlike marriages, registered partnerships are easily dissolved, and they impose none of the duties that marital partners have towards each other for support, mutual obligations for debts and the like. And the list of rights and benefits for domestic partners, achieved by amending specific statutes to add mention of partners, was small by comparison to the list of marital rights.
“Marriage is unique in that it is an enforceable contract to which the state is a party,” wrote Crooks. “Marriage carries with it an ‘equal obligation’ that spouses ‘owe to each other mutual responsibility and support.’ Once a couple is married, ‘the law steps in and holds the parties to various obligations and liabilities.’ Chapter 770 [the Domestic Partnership Act] makes no similar demands on domestic partners. Chapter 770 does not refer to a domestic partnership as a contract; it does not obligate domestic partners to satisfy a duty of ‘mutual responsibility and support.’ While the Plaintiffs argue that this obligation can be read into ch. 770 from the co-habitation requirement, this argument is not persuasive given the specificity with which the legislature has chosen to articulate spousal obligations” under the state’s marriage laws. Furthermore, neither the federal government nor other states — even those with their own “Vermont-style” partnership laws — accorded any recognition to Wisconsin domestic partners, since their relationship was not deemed equivalent to marriage in any relevant respect.
The plaintiffs had argued that the legislature could have avoided any clash with the Marriage Amendment by omitting the same-sex-only feature from the partnership law, thus allowing any two adults to become domestic partners if they were living together, including parents and children, siblings, and unrelated roommates. But the court found this to be inconsistent with the positions the plaintiffs had taken during the amendment campaign, and that this was not what the voters had understood to be the purpose of the Marriage Amendment. Indeed, such a partnership law would probably undermine marriage in the state by providing an alternative status for different-sex couples who wanted a less formal relationship by giving them access to some benefits they could only otherwise obtain through marriage!
The court concluded that the challenge should be rejected on three grounds: the strong presumption of constitutionality, the legislative history of the Marriage Amendment, and also “the legislature’s careful adoption of the first legislative act following the Amendment,” the adoption of the partnership act in its limited form.
If the current litigation surge towards marriage equality continues, this decision may be seen as a bit antiquated in sustaining a partnership law that may quickly be superseded, as signaled by the federal district court’s decision in Wolf v. Walker. But, in the meantime, the decision, which cannot be appealed further, preserves for Wisconsin domestic partners access to important rights and benefits upon which they have come to rely.
Although Governor Walker was the “loser” in this case, he otherwise scored a big day in the Wisconsin Supreme Court, as the court ruled in other cases to uphold the VoterID law passed by the Republican legislature to suppress voting by minorities, and also upheld the governor’s collective bargaining law, which cut back on the subjects for negotiation by public employee unions, eliminated their ability to get automatic dues payments from represented employees, and required them to go through frequent costly and time-consuming recertification elections in order to maintain their representative status from year to year. In the end he probably considered that he had a good day at court despite this setback.