Wednesday, August 26, 2009

Another post on the importance of Wisconsin's domestic registry law to same-sex couples and the law's opponents

On August 21st, Wisconsin Attorney General J.B Van Hollen announced his decision not to defend Wisconsin's new domestic registry law in Appling v. Doyle (Wis. Supreme Court Case No. 2009AP001860). Plaintiffs allege that the law violates Art. XIII, § 13 of the Wisconsin constitution. Adopted in the 2006 election, this constitutional amendment bans not only same-sex marriage, but also legal status for relationships "substantially similar" to marriage. The amendment presents an example of a "super DOMA" amendment.

I have suggested that the law has exceptional importance. As the July 23rd 07/23/09 Milwaukee-Wisconsin Sentinel Journal reports, Wisconsin has
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.
Wisconsin's domestic-registry law sets a precedent for challenging the reach of super DOMA amendments in over a dozen states that have them. The law underscores the inconsistency of allowing same-sex couples some marrital benefits, but excluding them from marriage.

Of course, the precedent may have limited value if state supreme courts rule as the Michigan state Supreme Court did in National Pride at Work, Inc. v. Governor of Michigan, 748 N.W.2d 524 (Mich. 2008), a case that law professor John Culhane alerted me to. In that case, the Court used dictionary definitions to support its conclusion that state employers violate the state's super DOMA amendment (Art. 1, § 25), if they do more than extend health insurance benefits to the same-sex partners of employees. Supporters of same-sex marriage also describe the psychological, financial, and other harms to same-sex couples and their families of limiting them to civil unions or domestic partnerships. Examples include testimony I mentioned yesterday before the the New Jersey Civil Union Review Commission, and a comparative analysis of civil unions and marriage in this report of the New York State Bar.

Nevertheless, the experience of New Jersey's and New York's same-sex couples lacks a parallel in Wisconsin. That state's new law presents an important opportunity for them, and an equally important threat to opponents of same-sex marriage.

Katie Belanger, executive director of Fair Wisconsin, told the 08/23/09 that the law "extends 43 benefits to same-sex partners compared to more than 200 benefits granted by marriage." These benefits include "inheritance rights, hospital visitation and medical leave."Belanger considers the law
a very important and critical step in moving toward equality. This is the first positive piece of legislation that the LGBT community has seen in more than 27 years.
The interviewed Cathie, a lesbian who would not identify herself because she wants to protect her identify from other workplace colleagues. Cathie said that
When you’re from a month ago thinking society will never let us have this, to at least being able to do the domestic partnership, it will be one of the happiest days of my life.
Cathie's comment informs understanding of the unique circumstances same-couples face in the "super DOMA" states. Domestic partnership laws in these states not only immediately benefit gay and lesbian couples, but over the long-term can alter public perception of discriminating against such couples, as more domestic partners present tangible examples of their families to relatives, colleagues, friends, and neighbors.

The nation's leading Christian legal advocacy group, the Alliance Defense Fund, has defended super DOMA amendments against the perceived inroads that these laws represent. It represents Wisconsin Family Action in the Appling lawsuit, and recently filed a lawsuit to defend Ohio's super DOMA amendment. [Cleveland Taxpayers for the Ohio Constitution v. Cleveland (Cuyahoga County Court of Common Pleas Case No. CV-09-701308)].

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