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Constitutionality of domestic partnership registry crux of case before Wisconsin Supreme Court

Appling and her co-plaintiffs will argue that "the Legislature deliberately designed domestic partnerships to mimic marriage" in violation of the state constitution.
Appling and her co-plaintiffs will argue that "the Legislature deliberately designed domestic partnerships to mimic marriage" in violation of the state constitution.
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The protracted legal battle over the state's domestic partnership registry reaches the Wisconsin Supreme Court on Oct. 23 with justices scheduled to hear oral arguments in the case of Appling v. Doyle.

At issue is whether domestic partnerships create a legal status that is "substantially similar" to marriage and therefore violate the state's 2006 constitutional ban on gay marriage.

Gov. Jim Doyle signed the state's domestic partnership registry into law as part of the 2009-2011 biennial budget. Domestic partnerships grant same-sex couples limited benefits, including visitation rights in hospitals and the right to inherit each other's assets.

Julaine Appling, the executive director of Wisconsin Family Action, a socially conservative organization that opposes homosexuality, unsuccessfully petitioned the Supreme Court to take jurisdiction in an original action in 2009. The domestic partner registry has since been ruled constitutional by Dane County Judge Daniel Moeser, with that decision upheld by a state appeals court.

The appeals court ruled that, when considering eligibility requirements, formation requirements, rights, obligations, and termination requirements, "the 'legal status' of a domestic partnership is not 'substantially similar' to the 'legal status' of marriage."

Appling and her co-plaintiffs appealed to the Supreme Court shortly after the December 2012 appeals court ruling and the high court agreed to hear the case in June 2013.

According to a brief (PDF) filed with the Supreme Court, Appling and her co-plaintiffs will argue that "the Legislature deliberately designed domestic partnerships to mimic marriage" in violation of the state constitution, and that the intent of the constitutional ban on gay marriage was to deny legal status to anything like Wisconsin's domestic partner registry.

In fact, Appling's brief states that opponents of the constitutional ban and the media "flooded voters" with the message that the amendment would preclude legal statuses like domestic partnerships, and that the supporters of the ban confirmed that message: "Indeed, as the Court of Appeals recognized, 'many opponents adopted the strategy of warning that the marriage amendment would ban domestic partnerships and civil unions.'"

Fair Wisconsin, the state's largest gay rights group and the intervening defendants in the case, disputes Appling's argument about the ban's original intent in its brief to the Wisconsin Supreme Court. The brief cites several statements from lawmakers and Appling herself, who in 2005 wrote in an op-ed for The Daily Cardinal that the ban "does not preclude the state legislature from considering some legal construct -- call it what you will -- that would give select benefits to cohabiting adults."

The brief also argues that the few protections offered through the registry do not mimic the hundreds of protections provided to married couples.

"The limited protections provided by domestic partnerships are a far cry from the significant rights, benefits and responsibilities associated with marriage," Christopher Clark, a senior staff attorney for Lambda Legal, which is representing Fair Wisconsin and a number of gay couples, said in a press release. "To suggest that that the two types of relationships are impermissibly similar is an antigay stretch of the imagination."

Attorney General J.B. Van Hollen refused to defend the domestic partnership registry when Appling filed her challenge in 2009, which prompted Doyle to hire the law firm Cullen Weston Pines & Bach to defend the state. Shortly after Scott Walker became governor he fired the law firm and refused to defend the law.

With no defense of the law by the state, Fair Wisconsin became the intervening defendant. The ACLU of Wisconsin has also filed an amicus brief (PDF) supporting Fair Wisconsin's position.

Oral arguments are scheduled for 1:30 p.m. Wednesday, Oct. 23, and can be streamed via Wisconsin Eye. The Supreme Court's decision is likely to be announced in 2014.

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