Almost two weeks ago, the Wisconsin Supreme Court heard oral arguments in Appling v. Doyle — a case in which the state Supreme Court will decide if Wisconsin’s domestic partnership law, which was enacted in 2009, should be struck down under the state Constitution. Members of Wisconsin Family Action, who are challenging the constitutionality of the domestic partnership law, are being represented by attorneys with the conservative nonprofit Alliance Defending Freedom. Not only is Wisconsin’s domestic partnership constitutional, groups such as ADF and WFA, whose proclaimed purpose is, among other things, to protect the “sanctity of … marriage,” ironically erode the “sanctity of marriage” by opposing domestic partnerships and marriage equality. It is time for WFA and ADF to face the inevitability of domestic partnerships and same-sex marriages and fully embrace marriage equality.
In 2006, Wisconsin voters passed a constitutional amendment that defined marriage in this state as “between one man and one woman” and also prohibited the state from recognizing “a legal status identical or substantially similar to that of marriage for unmarried individuals.” Julaine Appling, director of WFA, strongly supported this measure in 2006. In fact, she wrote a column in the Daily Cardinal near the end of 2005 arguing that Wisconsin’s marriage amendment “protects marriage from being undermined by ‘look-alike marriages,’ or marriage by another name, such as Vermont-style civil unions.” She also noted that “[c]ontrary to the message … given by opponents… the amendment … does not ‘ban civil unions.’”
In 2009, the Wisconsin Legislature enacted a domestic partnership law, which “create[d] the ‘legal status’ of ‘domestic partnership’ that carries with it some of the same rights and obligations accorded marriage.” As a result of this domestic partnership law, Appling and other plaintiffs decided to file suit, arguing this law violated the constitutional amendment passed by voters in 2006. Their main argument essentially contends one thing: The 2009 domestic partnership law impermissibly and unconstitutionally “creates a ‘legal status’ that is “‘substantially similar to that of marriage.’”
A thorough legal analysis, and indeed, Appling’s own statements demonstrates that the domestic partnership law is constitutional. First, Wisconsin’s domestic partnership law does not confer a legal status to same-sex couples that is “substantially similar to that of marriage.” Although the exact number of rights conferred to same-sex couples under the domestic partnership law is unclear, it is evident that it confers fewer than 50 substantive legal rights. In addition, there are “substantial legal aspects of marriage that are not included in [the definition of a] domestic partnership [in Wisconsin].”
Even though it is clear that Wisconsin’s domestic partnership law does not confer a legal status to same-sex couples that is substantially similar to marriage, Appling has challenged the constitutionality of the law. This is ironic, given the fact she once argued that the 2006 constitutional amendment only “protects marriage from being undermined by ‘look-alike marriages,’ or marriage by another name, such as Vermont-style civil unions.” Yet, the fact of the matter is Wisconsin’s domestic partnership law does not grant anything close to “Vermont-style civil unions.” As Richard Esenberg once said, “Think of marriage as a bundle of sticks. Each stick is a different right or incident of marriage. The [2006 constitutional amendment] only prohibits creation of a legal status which would convey virtually all of those sticks.”
Wisconsin’s domestic partnership law confers fewer than 50 legal rights to same-sex couples. This is fewer than the number of rights Wisconsin confers to those in legal marriages and is certainly much fewer than the more than 1,000 federal rights that the federal government confers to those in “legal” marriages. Thus, it cannot seriously be contended that Wisconsin’s domestic partnership law unconstitutionally confers a legal status to same-sex couples that is substantially similar to that of marriage.
Notwithstanding the fact that members and attorneys of WFA and ADF have a weak legal argument for trying to strike down the state’s domestic partnership law, there is a more important reason for these groups to stop using the legal system to challenge domestic partnerships and same-sex marriages. By trying to undermine the notion that same-sex couples deserve the same legal recognition as heterosexual couples, WFA and ADF destroy the sanctity of marriage because they prevent those who would positively contribute to this institution from doing so. In addition, these legal fights against marriage equality “humiliate 10s of thousands of children now being raised by same-sex couples. The[y] make it even more difficult for the children [of same-sex couples] to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” And I know, because my current guardians are a same-sex couple.
Regardless of what the Wisconsin Supreme Court ends up deciding in Appling v. Doyle, it seems clear, at least thus far, that Wisconsin’s domestic partnership law does not violate the Wisconsin Constitution. Much more importantly, though, I implore groups such as WFA and ADF to stop fighting against marriage equality. Not only will history objectively look at your efforts in a negative light, your actions directly subject many children to unnecessary humiliation by essentially telling them that their parents are second class citizens.
Aaron Loudenslager ([email protected]) is a second year law student.
