Tuesday, August 11, 2009

Statements by Wisconsin Family Action may undermine its challenge to the state's new domestic partnership law

(For related news, see the 08/06/09 Boston Edge.)

08/08/09 Wisconsin State Journal:

On behalf of Wisconsin Family Action (WFA), the Alliance Defense Fund (ADF) has petitioned the Wisconsin Supreme Court to overturn the state's new domestic partnership law. The case is Appling v. Doyle (Wis. Supreme Court Case No. 2009AP001860).

The new law, Wisconsin Stats. Ch. 770, (2009 Wisconsin Act 28, Sec. 3218, at pages 604ff.) confers 43 benefits to same-sex couples who register as domestic partnerships. These include "making partners eligible for family health plans, allowing them to inherit property and make end-of-life decisions for their partners." WFA claims that the law violates Art. XIII, Sec. 13 of the state constitution. Adopted in the 2006 election as a constitutional amendment, Art. XIII, Sec. 13 bans not only same-sex marriage, but also recognition of same-sex relationships that are identical or substantially similar to marriage. According to the petition (at para. 18), ADF alleges that Wisconsin Stats. Ch. 770 created a legal status "substantially similar to the legal status of husband and wife." Lamda Legal attorney Christopher Clark, who is aiding Fair Wisconsin, tells the Journal that the new registry does not "come anywhere close to marriage."

It's unlikely that the state Supreme Court will grant review. At least that's the opinion of former Supreme Court Justice Janine Geske. Nevertheless, opponents of same-sex marriage view domestic partnership laws as trojan horses - means for incrementally reversing public opinion against same-sex marriage. As I suggested here, that fear resonates among social conservatives in states whose voters approved of constitutional amendments banning same-sex marriage.

Even if the Court grants review, WFA's case faces another problem. WFA made statements in the runup to the 2006 election that appear to undercut its position. In December 2005, WFA president Julaine Appling told the AP:
"If the state Legislature wants to take up adoption and inheritance rights, it can do that.Nothing in the second sentence (of the amendment, which forbids civil unions) prohibits that."
In December 2005, the main author of the constitutional amendment, state Senator Scott Fitzgerald, also said the measure
"would not prohibit state or local governments or a private entity from offering privileges or benefits such as health insurance benefits, pension benefits, joint tax return filing or hospital visitation to same-sex or unmarried couples."

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