Dane County Circuit Court Judge Daniel R. Moeser has rejected a constitutional challenge to the validity of Wis. Stats. Chapter 770, the Domestic Partner Registry Act, finding that it does not create a "legal status" that is "identical or substantially similar" to marriage. Judge Moeser granted a motion for summary judgment filed by the Intervenor-Defendants, Fair Wisconsin, Inc., and a group of same-sex couples. Although the state defendants, former Governor James E. Doyle and two other officials, had originally filed this motion to dismiss, the new, anti-gay governor, Scott Walker, had informed the court that the state was no longer defending the statute, so the intervenors, represented by Lambda Legal, provide the defense and triumphed on the motion. The court rendered the decision in Appling v. Doyle, No. 10-CV-4434, on June 20, 2011.
The Marriage Amendment, adopted by Wisconsin voters in 2006, provides: "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."
Several years after the amendment was adopted, the state legislature passed a law establishing a domestic partnership registry for unmarried partners to signify to their state that they are partners. Couples pay a fee to register and receive a certificate attesting to their domestic partnership. Domestic partnership status also brings a list of rights: victim notification by the Department of Corrections, spousal evidentiary privilege, the right to sue for wrongful death, the right to apply for crime victim compensation, the presumption that real property acquired in their relationship is held in joint tenancy, certain rights regarding estate administration, protection against eviction while a partner is serving in the National Guard, visitation rights in care facilities and consent rights regarding institutionalization, rights to access various records, power of attorney rights, right to consent to autopsy and certain insurance subsidy rights, waiver of real estate transfer fees, family and medical leave rights, workers compensation death benefits and other benefit rights comparable to spouses. The list is extensive but falls far short of the rights accorded to married couples.
Individuals who were active in the campaign to pass the marriage amendment filed suit against Governor Doyle (who had signed the DP Registry bill into law), alleging that it violated the marriage amendment. By withdrawing his support for the summary judgment motion that was filed on behalf of Gov. Doyle, Gov. Walker indicated his agreement with the plaintiffs.
But Judge Moeser strongly disagreed. Although he found that the plaintiffs had taxpayer standing to sue, based on the minimal level of state expenditure that might occur in connection with the DP Registry, he found that the legal status created by the DP Registry Act fell so far short of marriage that it could not be found to be prohibited under the amendment.
An important part of Judge Moeser's analysis concerned a detailed examination of the legislative history of the amendment. He found that throughout its consideration in the legislature and the resulting campaign, it was clear that the proponents sought to ban same-sex marriages and Vermont-style civil unions, which carried virtually all the state law rights of marriage. Thus, the phrase "identical or substantially similar" was intended to prevent the state from getting around the marriage ban by setting up a parallel legal institution with the same or almost the same list of rights. The judge noted specific statements by various proponents that the measure was not intended, for example, to prohibit the state from providing partner benefits to state employees.
A news release put out by proponents said, "significantly, though, the language does not prohibit the legislature, local governments or private business from extending particular benefits to same sex partners as those legal entities might choose to do." Based on this legislative history, Judge Moeser found that "the drafting files also show that legislative proponents did not intend for the Marriage Amendment to prevent the state from creating a legal construct to provide benefits to same-sex couples, or for it to prevent the legislature from packaging together a bundle of rights for same-sex couples," so long as the result was not "substantially similar" to marriage.
The judge also found that the legislature did not ignore the Marriage Amendment in 2009 when it was considering the DP Registry bill, even specifically referencing the amendment in the declaration of policy contained in the bill. The judge found that the legislature "carefully considered the constitutionality of Chapter 770 in light of the Marriage Amendment prior to enacting the domestic partnership registry." Comparing marriage and domestic partnership in Wisconsin, the judge found that "the vast majority of rights provided to domestic partners are rights that the law also grants to parents, children, family members, and sometimes 'close friends.' Other rights given to registered domestic partners can be obtained by any two people by executing certain documents."
Plaintiffs had argued that even if — as found — the DP status did not provide most of the legal incidents of marriage, it violated the Amendment becuse "it is calculated to confer the same social status of marriage." But the court found that accepting this argument would require it to "ignore the evidence of the plain language, constitutional debates, and earliest interpretations by the legislature," instead adopting some sort of "general purpose" interpretation.
The court rejected this argument on two grounds: "First, as this court has repeatedly stated, the Marriage Amendment prohibits a legal status that is identical or substantially similar to the legal status of married individuals. As stated above, the legal status of domestic partners is substantially different than that of married spouses." Second, "assuming, arguendo, the purpose of marriage is to accommodate the potentially procreative nature of heterosexual relationships, then it is undisputed that domestic partnerships do not have the same purpose because there is no potential for a homosexual relationship to be procreative. Therefore, Plaintiffs' argument about the purpose of marriage supports the conclusion that domestic partnerships are not substantially similar to marriage."
Indeed, the court concluded, "The state does not recognize domestic partnership in a way that even remotely resembles how the state recognizes marriage." The judge also found that the package of rights accorded domestic partners "is not even close to similar to a Vermont-style civil union," which is what the Amendment sponsors sought to prevent. The court found that the DP registry was "simply a legal construct created to provide some benefits to same-sex couples," exactly what the Amendment proponents had stated would be appropriate if the Amendment was enacted.
It is likely that the Plaintiffs will seek to appeal, perhaps joined by Gov. Walker. Lambda Legal provided representation to Fair Wisconsin and the individual intervenors. The text of the decision is available on Lambda Legal's website.