As the Wisconsin Supreme Court weighs a 2009 Domestic Partnership law against the state's 2006 Marriage Amendment, a gay rights group argues that domestic partnerships are not "substantially similar" to marriage in Wisconsin, while the Alliance Defending Freedom (ADF) claims the civil union law violates the state's constitution.
"In 2006, the people of Wisconsin enacted a state constitutional provision that defines marriage as the union of a man and woman and prevents the state from creating a legal status substantially similar to or identical to marriage," Jim Campbell, legal counsel for ADF, told The Christian Post in an interview on Thursday. In 2009, however, the state enacted a Domestic Partnership law for same-sex couples.
Campbell explained that concerned citizens joined Wisconsin Family Action, raising a lawsuit against the 2009 law, arguing that it was unconstitutional. The Wisconsin Supreme Court denied their request to petition directly to the high court, however, so the suit has slowly risen through appeals to reach the highest state court, where oral arguments were first heard Wednesday.
When the suit was originally filed, Republican Attorney General J.B. Van Hollen refused to defend the domestic partnership law. "When the people have spoken by amending our constitution, I will abide by their command," Van Hollen said at the time. "When policy-makers have ignored their words, I will not."
This prompted then Democratic Governor Jim Doyle to hire outside counsel. The case came to be known as Appling v. Doyle. But when Republican Scott Walker took office in 2011, he declined to defend the law. Instead, Fair Wisconsin, a gay rights group, hired Lambda Legal to defend the law. Nevertheless, the case is still called Appling v. Walker, because Governor Walker represents the state.
"Their primary argument is that the domestic partnership law only gives between 30 and 50 of the rights and protections of marriage," ADF's Campbell explained.
"The idea that domestic partnerships violate Wisconsin's anti-marriage amendment is ridiculous," said Larry Dupuis, legal director of ACLU of Wisconsin, a group which declared their support for Fair Wisconsin and Lamdba Legal in the case last week. "Domestic partnerships don't create a legal status that is identical or even remotely similar to marriage."
Campbell, summarizing the ADF arguments, vehemently disagreed. "Our response is that the Wisconsin Marriage Amendment is specifically concerned with the legal status that is created, not the rights and benefits," he explained.
In Wisconsin law, both marriage and domestic partnership have a consent requirement, an age requirement, a consanguinity requirement (you can't marry your first cousin), and a requirement that each person cannot be presently in another marriage or domestic partnership. "They all have the same features," Campbell claimed. "We believe that these two unions are specifically substantially similar."
The ADF lawyer also mentioned the New Mexico Supreme Court, which heard the first oral arguments in the gay marriage case Griego v. Oliver also on Wednesday. In this case, a district judge ordered a county to issue marriage licenses to same-sex couples, arguing that the state's marriage laws (originally passed during the 1860s) permit it.
"In the 1860s, it is inconceivable that the territorial legislature conceived of marriage as anything else than between a man and a woman," Campbell argued. He also argued that the New Mexico Constitution, which has a section guaranteeing equal protection of the laws, does not require the state to accept gay marriage.
"Fundamental Constitutional Rights in this country are those that are deeply rooted in the history and traditions of our nation," Campbell explained. Since gay marriage is not in that history and tradition, it is not a fundamental constitutional right, and therefore does not require defense under "equal protection of the laws."