Whether domestic partnerships are constitutional in Wisconsin was up for debate in the state’s Supreme Courts oral arguments Wednesday.
Attorney Austin Nimocks, who represented Wisconsin Family Action President Julaine Appling, said the state should overturn the statutes allowing domestic partnerships in Wisconsin between same-sex couples, as they are too similar to marriage.
Nimock said the age, gender specific and familial relations requirements violated the 2006 constitutional amendment that specified marriage was between a man and a woman, adding any “substantially similar” institution is unconstitutional.
“This case is not about benefits, but rather about [the statute] mimicking marriage’s blueprint,” he said.
Domestic partnerships, which were legalized statewide in former Gov. Jim Doyle’s 2009-11 budget, require people be 18 years old, the same gender and not a closer blood relation than second cousins.
Wisconsin Family Action filed suit against the state in 2009, but both the circuit court and appeals court affirmed domestic partnerships as being constitutional.
Nimocks said in other domestic relationships, such as two sisters living together or a granddaughter caring for a grandfather, people involved may receive some benefits similar to marriage, but the relationship is not viewed as a sexual, martial relationship like domestic partnerships are.
However, attorney Christopher Clark, who argued for Fair Wisconsin, a state gay right’s group, said domestic partnerships and marriages are very different.
Clark said Appling and the other petitioners have fallen “far short” of proving the statutes are unconstitutional since the benefits and rights of being in domestic partnerships are different than marriage.
Marriages require more state oversight than domestic partnerships, as the definition of marriage defines the institution as a civil contract between two people who have a “mutual obligation of support,” which domestic partnerships do not, Clark said.
A “mutual obligation of support” specifies a husband or wife must support the other financially, even after a divorce, he said. Issues of child custody and adoption also must include state oversight, while domestic partnerships do not, he added.
“You need the state’s permission to exit a marriage, but you can unilaterally decide in a domestic partnership and go down to the county clerk and notice is given to your partner and you are done,” Clark said. “You don’t owe any obligation to your partner.”
Gretchen Viney, a University of Wisconsin Law School professor who specializes in family law, said of the 200 rights afforded to married couples, only 43 of those rights are also afforded to domestic partners.
Both married couples and domestic partners have rights to inheritance, death benefits, family and medical leave, workers’ compensation, access to their spouse or partner’s healthcare records, in addition to visiting them in care facilities among other rights, Viney said.
However, any rights associated with divorce laws, some property rights or deciding the custody of children are not afforded to people in domestic partnerships, Viney said.
The recent U.S. Supreme Court decisions regarding federal benefits for same-sex married couples do not apply to domestic partners in Wisconsin because federal does not recognize domestic partnerships, Viney added.
