Monday, July 27, 2009

Alliance Defense Fund petitions Wisconsin Supreme Court to overturn newly enacted domestic parternship law

07/28/09 update:

07/28/09 ADF Alliance Alert, "Wisconsin Public Radio: The challenge to Wisconsin’s domestic partner law"

You can listen to the program here.

Initial post:

07/23/09 ADF Alliance Alert, 07/23/09 Milwaukee-Wisconsin Sentinel Journal, and 07/24/09 AP / Wisconsin State Journal:

As part of its budget, Wisconsin recently enacted Governor Jim Doyle's proposal of a domestic partnership registry for same-sex couples. The new domestic-partnership law is Wisconsin Stats. Ch. 770 (2009 Wisconsin Act 28, Sec. 3218, at pages 604ff.). According to the Sentinel Journal,

[C]ouples will be offered 43 of the more than 200 rights and benefits extended to married couples, such as allowing domestic partners to take family and medical leave to care for a seriously ill partner, make end-of-life decisions, and have hospital visitation rights.
Art. XIII, Sec. 13, of the state constitution bans not only same-sex marriage, but also recognition of same-sex relationships that are identical or substantially similar to marriage. Adopted by the voters in 2006 as a constitutional amendment, it has also been called a "super DOMA" amendment.

Wisconsin Stats. Ch. 770 (2009) has the following declaration:

770.001 Declaration of policy. The legislature finds that it is in the interests of the citizens of this state to establish and provide the parameters for a legal status of domestic partnership. The legislature further finds that the legal status of domestic partnership as established in this chapter is not substantially similar to that of marriage. Nothing in this chapter shall be construed as inconsistent with or a violation of article XIII, section 13, of the Wisconsin Constitution.
This legislature based its finding on a Legislative Counsel opinion. As the Wisconsin State Journal reports, the Legislative Counsel concluded that the law

should survive a legal challenge because it does not give "comprehensive, core aspects of the legal status of marriage to same-sex couples." Those include the ability to divorce and share marital property.
Moreover, in Jayne Dunnum v Dept of Employee Trust Funds, Wisconsin's Dane County Circuit Court ruled (at page 28) that the new law does not violate the state's "super DOMA" amendment.

Nevertheless, on behalf of Wisconsin Family Action, the Alliance Defense Fund has petitioned the Wisconsin Supreme Court to rule that the new law violates Art. XIII, Sec. 13. Rather than pursue litigation through a trial court and lower appellate court, ADF has sought direct relief from the Supreme Court in an "original action." ADF contends, among other things, that it needs the Court to intervene because the alleged constitution violation carries exceptional importance to Wisconsin citizens, and requires prompt and authoritative determination.

The case is Appling v. Doyle (Wis. Supreme Court Case No. 2009AP001860).

I have explained why I think the domestic-partnership law has singular importance. As the Sentinel Journal observes,

Wisconsin will become the first state with a constitutional amendment banning same-sex marriage and civil unions to put in place domestic partnerships for same-sex couples. It is also the first Midwestern state to legislatively extend legal protections to same-sex couples.

It's unlikely that the Wisconsin Supreme Court will grant the petition:

Former Justice Janine Geske, now a Marquette University law professor, said it's rare for the court to accept such cases without first having them go through lower courts.

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