Monday, July 6, 2009

Should Wisconsin have a more inclusive partner registry? Is its new domestic partnership law vulnerable to state constitutional challenge?


American University Law Professor Nancy Polikoff faults the strategy behind Wisconsin's recently enacted law on domestic partnerships. Wisconsin has what Polikoff calls a "super DOMA," because its constitution (Art.I, Sec.25) not only bans same-sex marriage (per "plain-vanilla" DOMA), but also restricts recognition of civil unions. (It bans civil unions that are "substantially similar" to marriage.) I have claimed that the new law represents a promising, long-term strategy for advocates of same-sex marriage to undermine public support for so-called "marriage-protection" amendments, even if the Wisconsin model does not provide a template for other "super DOMA" states, such as Michigan. Polikoff, however, criticizes this strategy for the risk it incurs:
"[Wisconsin's domestic partnership law] has set itself up for a higher likelihood of losing in the courts by pegging eligibility to criteria that look so much like eligibility for marrying."
Indeed, the new law is vulnerable to a state constitutional challenge. The Gay Marriage Watch blog links to Wisconsin Radio Network report on the interest of the Wisconsin Family Council in pursuing just such a challenge.

Polikoff devotes her book and her blog to expanding access to the rights and benefits marriages, so that all families, traditional or otherwise, would enjoy access. Consistent with this ideal, she favors designated beneficiary agreements, which have been adopted in two states - Colorado and Hawaii - whose constitutions ban same-sex marriage, or give the legislature power to ban it. (Here is an opinion article about Colorado's new law on designated beneficiary agreements.)

Has Polikoff overstated the risk that Wisconsin's domestic partnership law will not survive constitutional challenge? She may have. 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. This ruling offers a reasonable hope that the Wisconsin Supreme Court will sustain the lower court's interpretation of Wisconsin's constitution.

At any rate, in the two states (click here for Hawaii, here for Colarado) that have adopted designated beneficiary agreements, state constitutional amendments that concern same-sex marriage do not also restrict domestic partnerships. If these states also had "super-DOMA" amendments, even the beneficiary agreements Polikoff favors would face risk of credible state constitutional challenges. According to the 07/01/09 Denver Westword Blog,
Today's implementation of designated beneficiary agreements in Colorado, which grant unmarried couples -- including those whose partners are the same sex -- with many of the rights associated with marriage drew fiery condemnation from Bruce Hausknecht, judicial analyst for Focus on the Family Action, the outfit's political wing. "This is a backdoor incremental step towards legalizing same-sex marriage in this state."

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