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Is There Hope for Wisconsin’s Gays Even If Supreme Court Doesn’t Overturn Amendment?

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Bowing out of the gay marriage debate, a Wisconsin Court of Appeals on Thursday asked the state’s Supreme Court to take up a case challenging the two-year-old constitutional amendment that voters enacted. But are gay rights activists also going to sit out this round, and give themselves a 10-year timeline to enact marriage equality?

At issue is whether the referendum that Badger State residents voted on unlawfully included two issues in the same measure: whether to define marriage as between one man and one woman and whether same-sex civil unions should be outlawed. The state constitution requires referendums be limited to a “single subject.” (Also at issue is whether the plaintiff, a straight man with a gay daughter, has the standing to sue.)

The Wisconsin Supreme Court has two courses of action: Accept the case for its own review, or demand the Court of Appeals make its own ruling. But even if either court struck down the amendment, state law still makes gay marriage illegal, and that’s another battle to be fought. Gay marriage advocates have Democratic Gov. Jim Doyle on their side; he wants to create a “domestic partner registry” to provide the same benefits to gay couples that straight couples receive. It’s one way to get around the discrimination of the constitutional amendment.

But when it comes to the advocacy foot soldiers on the ground, apparently “there isn’t currently a push to introduce a ballot measure to overturn the ban,” reports WisPolitics.com. “The earliest that could happen would be 2011 because the bill would have to pass two successive legislatures before going to voters. Total Dem control of the statehouse gives the advocates a window for strong action, political observers say.”

Are same-sex marriage opponents planning to just twiddle their thumbs in victory then?

But the situation makes Wisconsin Family Action’s Julaine Appling wary; Wisconsin Family Action helped spearhead the movement to pass the ban.

“I think in this climate I don’t take anything for granted. I think that those who are determined to redefine marriage have made it very clear that they have a plan for every state to undo whatever has been done,” said Appling, referring to the Iowa court ruling and Vermont state Legislature’s vote that cleared a path for same-sex marriage in those states.

Appling is also suspicious of the timing of a Wisconsin appeals court request Thursday to send a lawsuit challenging the constitutionality of Wisconsin’s ban to the state Supreme Court. The case challenges the way the marriage amendment was put to voters.

The court’s request comes two days after Chief Justice Shirley Abrahamson, considered by many to be one of the more liberal members of the high court, was re-elected by a wide margin. Still, conservatives hold a majority on the court even with her re-election.

“I don’t think anybody should miss the irony of the timing,” Appling said.

However, a source who works in Dem politics said for now gay marriage advocates have moved on.

“The LGBT community very smartly focused on doing things that are achievable and there is support for, like domestic partner benefits,” said the source. “It’s really heartening and encouraging seeing this in the Midwest, but the focus is on what there’s public support for.”

The Dem source said the climate is shifting toward acceptance of same-sex marriage and predicts there could be legal gay marriage in Wisconsin in the space of a decade.

By:           editor editor
On:           Apr 13, 2009
Tagged: ,
  • 2 Comments
    • Alec
      Alec

      Usually amendments won’t violate the single subject rule insofar as the subjects are “reasonably” or even “rationally” related to one another. I think civil unions would fall into that category.

      A bigger issue is this: Are those domestic partnership benefits unconstitutional? Much turns on the language of a state’s particular amendment, but MI’s amendment was used to torpedo health care benefits.

      Single subject challenges have failed in Georgia and Louisiana, by the way.

      Apr 13, 2009 at 11:53 am · @ReplyReply to this comment ·
    • Dylan from WI
      Dylan from WI

      “Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.”

      Above is the amendment made in 2006 by the voters here in WI. While I don’t believe our Supreme Court with its conservative status (the Chamber of Commerce and WMC have taken a liking to buying Supreme Court seats in elections, and Abrahamson was the exception) will overturn it, I think there may be an argument for it.

      The first part of the amendment is clearly a gay marriage section. The second, however, is not explicit to same-sex relationships, and in fact would ban civil unions or similar rights or privileges from male-female couples who are unmarried. This was argued back during the campaign itself, and I would imagine, see a resurgence in court. That, I could see, could violate the one issue rule.

      They could avoid it entirely by voiding the man’s right to sue, which could be valid.

      I’m not hopeful.

      Apr 14, 2009 at 12:57 am · @ReplyReply to this comment ·

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