On December 20, 2012, the Wisconsin Court of Appeals issued its decision upholding the constitutionality of the 2009 Wisconsin Domestic Partnership law. preserving the limited but important rights and obligations provided to same-sex couples who register as domestic partners under Wisconsin’s law. The long-awaited decision affirmed Dane County Circuit Court Judge Daniel Moeser’s June 20, 2011 ruling that the law does not violate Wisconsin’s 2006 “Marriage Amendment” to the Wisconsin Constitution.
Pines Bach LLP attorneys Lester Pines, Tamara Packard and Susan Crawford played key roles in this important litigation. When Julaine Appling and other members of the Wisconsin Family Action board of directors first attempted to challenge the law by petitioning to bring an original action to the Wisconsin Supreme Court, then-Governor Doyle hired this firm to defend the law on behalf of the State after Attorney General J.B. Van Hollen declined to do so. Susan Crawford was the Governor’s Chief Legal Counsel at the time, and worked with Lester Pines and Tamara Packard to successfully oppose the petition for original action. Undeterred, Appling and the others next filed a challenge to the Domestic Partnership law in Dane County Circuit Court, where Attorneys Pines, Packard and Crawford continued to defend it for the State, including by filing a detailed brief that later proved to be very persuasive to Judge Moeser. After the legal arguments were completed, but before Judge Moeser issued a decision, Governor Walker fired the firm from the case and simply refused to defend the law. Fortunately, the statewide LGBT rights group Fair Wisconsin and its excellent legal counsel, Lambda Legal, stepped in to provide the necessary defense. They did a superior job in the Court of Appeals, as reflected by the unassailable logic of the Court of Appeals decision.
In 2006, the Wisconsin Constitution was amended to provide that “A legal status identical or substantially similar to . . . marriage for unmarried individuals shall not be valid or recognized in this state.” The conclusion of the Court of Appeals decision is that marriage and domestic partnership under Wisconsin law are not “substantially similar” and therefore the law does not violate the amendment. The Court reached this conclusion based on the plain meaning of the amendment as well as the historical context of the amendment’s passage. With regard to the latter, the Court found it persuasive that proponents of the amendment told voters in the months leading up to the vote on the amendment that a law like the one enacted in 2009 would not run afoul of the amendment if it were adopted. In particular, Appling herself told voters that the amendment would “not preclude the state legislature from considering some legal construct — call it what you will — that would give select benefits to co-habitating adults.” Likewise, two lead legislative sponsors of the amendment told voters that “[T]he language does not prohibit the legislature . . . from extending particular benefits to same-sex partners as those legal entities might choose to do.” After carefully considering this and other historical evidence, the Court of Appeals found that “informed voters would have understood that marriage amendment proponents were saying that the marriage amendment would not ban legally recognized domestic partnerships conferring a limited subset of the rights and obligations of marriage.”
We congratulate Fair Wisconsin and Lambda Legal on a job well done, the more than 2,000 Wisconsin couples who currently enjoy the protections of the Wisconsin Domestic Partnership law, and the many more who will secure those protections in the future. We also look forward to the day that marriage equality comes to Wisconsin.