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Monday, January 26, 2015 |  Madison, WI: 24.0° F  Light Snow Fog/Mist
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Dane County Judge Richard Niess wrongly let stand an overreaching ban on equitable treatment
A lost opportunity for fairness

It was a David vs. Goliath moment. A UW-Oshkosh political science instructor, who happens to have a gay daughter, took on the state of Wisconsin over its 2006 amendment banning gay marriage and civil unions.

Goliath won.

The case was decided late last month by Dane County Judge Richard Niess. The presumption is that Niess, who was appointed to the bench in 2004 by Gov. Jim Doyle, embraces a liberal philosophy. You'd never know it from this ruling. Where are the left-wing judicial activists when you need them?

David in this case was William McConkey, who took it upon himself to protect not only the rights of his daughter but those of all gay women and men in Wisconsin. His goal was to overturn the amendment on grounds that it unlawfully joined together two issues. But Niess ruled that the two issues "clearly relate to the same subject matter."

Perhaps so. But, just as clearly, they don't accomplish the same thing.

To refresh your memories, the then-GOP-controlled state Legislature voted in 2003 and 2005 to approve the amendment, which was then put to voters on the fall 2006 ballot. The obvious intent was to encourage conservative turnout to help Republican candidates.

The amendment called for changing the state constitution to define marriage as between one man and one woman and outlaw the state from granting anything akin to legal marriage status to other unmarried individuals, gay or straight.

Neoconservative Republicans and their puppeteers, the Wisconsin Families Council and similar groups, trounced their opponents by a 60%-to-40% margin. As in other states that have passed similar measures, this victory was buoyed by fear mongering about the "threat" that gay unions posed to the institution of marriage.

But in fact, the Wisconsin amendment - with its second sentence barring any legal status "substantially similar to that of marriage" - goes farther than in other states. This language seems designed to outlaw civil unions, which have support even among people like Barack Obama who oppose gay marriage. (What's John McCain's position? Who knows? His answer when asked whether he opposes civil unions is the same as when asked if he supports them: "No.")

The amendment, in other words, used public support for one measure to leverage a ban on another measure about which people feel differently. That was the essence of McConkey's challenge. Judge Niess should have been receptive.

By playing it straight and by the book, Niess failed to see the forest for the trees. He let his court be used to erode the equal protection clause of the 14th Amendment in the U.S. Constitution.

The amendment told gay couples - even those who I know have been together more than 25 years - that they can't marry. And the cherry on top was to say they couldn't even have the legal recognition conveyed by civil unions.

Also affected by the second ban are civil unions among unmarried heterosexual couples. Talk about your intended consequences.

McConkey was right to challenge the amendment on grounds that it does not one but two things - three, if you count the ban on civil unions for opposite-sex couples.

This latter consequence will disproportionately affect African American couples. Polls indicate that more than 60% of African American women do not intend to marry, although they will have children and likely a partner in the household. These women distrust marriage because of a perceived dearth of solid men who take raising a family seriously.

For some of these women, a civil union would have been an acceptable half-step. Not any more.

Judge Niess' decision, which held that the two questions in the amendment are "two sides of the same coin," is not likely to be the last word. McConkey plans to appeal, and the ultimate decision will be made by higher courts.

But, in the meantime, the losers in this case will continue to lose. They'll be denied the legal rights afforded other committed couples. The state will continue to hoist a flag that bears an ominous scrawl: "Hate is okay in our constitution."


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