Following a wave of states legalizing same-sex marriage this week, the Wisconsin Supreme Court will now have the opportunity to review the state’s ban on gay marriage, an appeals court ruled Thursday.
William McConkey, a political science lecturer at the University of Wisconsin-Oshkosh, filed a suit against the state claiming the amendment banning same-sex marriages in the state was unconstitutional because of the way it was presented to voters.
“The lawsuit is not about the substance of the amendment that was approved by the voters, it’s about whether the proper procedures were followed about the way the amendment was drafted,” McConkey’s attorney Lester Pines said.
When a referendum for a constitutional amendment is submitted to voters, it can only contain one question, according to Pines. When the amendment to ban gay marriage was voted on, it included two provisions: one limiting marriage to only one man and one woman and another preventing any recognition of a situation similar to marriage between unmarried individuals.
The amendment to ban same-sex marriages in the state passed Nov. 7, 2006.
After McConkey brought the case to a Dane County Circuit Court, the court ruled the amendment was correctly presented to voters. This ruling granted McConkey the standing to bring the case before the court, though Attorney General J.B. Van Hollen argued against it during the trial.
Following the circuit court’s ruling, both McConkey and Van Hollen appealed the case. McConkey appealed based on the court’s amendment ruling while the attorney general appealed the standing ruling.
Thursday, the Fourth District Wisconsin Court of Appeals said it needed further clarification before it could make a ruling on both the amendment procedures in the state, as well as further information on McConkey’s standing to bring the case before the court to begin with.
According to the court’s ruling, the judicial precedents on both issues required further clarification from the Supreme Court before a decision in the case could be made.
The Wisconsin Family Council, a third-party organization against allowing same-sex marriages in the state, was also a part of the judicial process, according to CEO Julaine Appling.
The group filed a brief to express its support for the circuit court ruling the amendment was constitutional and could do something similar if the Supreme Court decides to take up the case, Appling said.
“It’s all in the court’s hands right now,” Appling said. “We’re cautiously optimistic the court will respect the will of the people.”
Fair Wisconsin, an organization that supports same-sex marriages in the state, is waiting to see if the court decides to hear the case before deciding if they will take any action, according to spokesperson Christine Callsen.
If the Supreme Court does not accept the case, it will be sent back to the appeals court.
