When Julaine Appling first made noise about former Gov. Jim Doyle's plan to establish a domestic partner registry for same-sex couples, she said she was troubled that it was broad and vague.
"One of our concerns is that this kind of partner registry could be available to two guys sitting in an ice shanty somewhere," she told me in late February 2009.
Appling, who is president of Wisconsin Family Action, which led the successful drive in 2006 to ban same-sex marriage in the state constitution, was suggesting that two individuals of the same gender who are not romantically involved should not be able to register as domestic partners. In fact, the law creating same-sex domestic partnerships that was signed by Doyle in June 2009 as part of the biennial state budget -- and that was unanimously upheld last week by the Wisconsin Supreme Court -- made the legal status available only to same-sex partners.
Appling's concern that non-couples could become domestic partners seemed to disappear in the final stages of her legal challenge to the state's domestic partnership law, which she filed in 2010 in Dane County Court. In fact, her attorneys argued before the Wisconsin Supreme Court in October 2013 that the law could be constitutional if, say, a "granddaughter living with a grandfather" or "two sisters" could become domestic partners. It was a departure from their original legal arguments, and it happened midstream.
Appling's attorneys had initially asserted that the rights and benefits associated with domestic partnerships made such unions "substantially similar" to marriage and therefore violated the state's constitutional ban on same-sex marriage.
But the court ultimately did not buy the revised argument.
"We see no evidence that voters who approved the Amendment saw it as permitting [certain rights and benefits] to be granted only in the kind of scheme Plaintiffs now suggest -- that is, in cohabiting domestic relationships that bear no resemblance at all to marriage, with same-sex couples only as incident beneficiaries," wrote Justice Patrick Crooks, who penned the court's July 31 decision that found the domestic partner registry constitutional.
Former Wisconsin Supreme Court Justice Janine Geske says it is rare for attorneys to overhaul their legal arguments in the middle of a lawsuit. But, she adds, "That, in part, is contextual of what is going on."
"Things have changed so," adds Geske, who served on the high court from 1993 to 1998 and retired last year from the faculty of the Marquette University Law School.
In the last year federal judges around the country -- including U.S. District Judge Barbara Crabb of Wisconsin -- have found their respective state bans on same-sex marriage unconstitutional. Says Geske: "It is the most amazing metamorphosis in the law in my lifetime."
Opponents of the domestic partner registry realize they now have bigger fish to fry, says Geske. "The lack of uproar to this unanimous decision is telling."
Beyond a reasonable doubt
To overturn the domestic partner registry, Appling and her co-plaintiffs, which included others affiliated with Wisconsin Family Action, had to prove "beyond a reasonable doubt" that the same-sex domestic partnership registry violates the state's ban on same-sex marriage.
To make that determination, the justices needed to identify what the supporters of the amendment had stated was the reason for the ban, back at the time of ratification.
"Intent is critical to determining what the Amendment means and consequently to determining whether the statute, which is accorded a presumption of constitutionality, withstands the Plaintiffs' challenge," wrote Crooks for the court.
In their ruling (PDF), the justices cited numerous statements by supporters that the constitutional amendment was not meant to bar the state from providing limited rights and privileges to same-sex couples.
"What the voters were told was that the Amendment did not mean that government entities, including the Legislature, would be barred from 'extending particular benefits to same-sex partners as those legal entities might choose to do,'" Crooks wrote. The justices ruled that Appling failed to prove beyond a reasonable doubt that the domestic partner registry was unconstitutional.
It was a point Justice Patience Roggensack expanded on in a five-page concurring opinion. Chief Justice Shirley Abrahamson also wrote a concurrence, though it was much shorter at just four paragraphs.
Geske says the most "classic" concurrence is one written by justices who agree with the results of a decision but not the methodology.
They're also written to make a point. "In a nutshell, that is what both of these are doing," Geske says.
Roggensack, considered part of the conservative majority on the court, says she wanted to further discuss the legal issues at play in order to "illustrate that judicial decision-making is not based on whether the statute reviewed is grounded in a liberal legislative philosophy or in a conservative legislative philosophy." She also makes reference to the court's decision to uphold as constitutional Gov. Scott Walker's collective bargaining restrictions in Act 10.
Roggensack is essentially arguing that the court is not being political, just consistent. "That may be in part for conservative readers who ask how come this one didn't turn out their way," adds Geske.
Abrahamson, for her part, wants to remind readers that the domestic partner registry case did not challenge the constitutionality of Wisconsin's same-sex marriage ban. She also notes that while Crabb recently ruled the ban unconstitutional in federal court, a majority of her colleagues declined to take a challenge to the law when given the chance in May. Only Abrahamson and Justice Ann Walsh Bradley, considered part of the liberal wing of the court, dissented.
Madison attorney Christopher Krimmer, whose practice focuses on family law, says another way to read these concurrences is to remember that in Wisconsin justices are elected.
"Unlike politicians who can hold a press conference to explain their actions, the justices are generally limited to only their written decisions to explain their actions," he says. "If you run on a conservative platform, or adhere to a conservative judicial philosophy, you may want to take the opportunity to write a concurring opinion to assure those who voted for you that a 'liberal' outcome in a particular case does not reflect a change in your personal judicial philosophy."
A new coalition
The 7th Circuit Court of Appeals is scheduled to hear oral arguments Aug. 26 in Chicago on the state's appeal of Crabb's ruling, which found that Wisconsin's ban on same-sex marriage violated gay couples' "fundamental right to marry and their right to equal protection of laws" under the Constitution. Three weeks before the three-judge panel is set to convene, a new coalition has been formed in Wisconsin to conduct a public education campaign "with the goal of winning the freedom to marry for same-sex couples in our state."
Wisconsin Unites for Marriage includes ACLU of Wisconsin; Fair Wisconsin, the state's largest gay rights group; and Freedom to Marry, a national campaign in support of same-sex marriage.
Wisconsin Attorney General J.B. Van Hollen's appeal of Crabb's ruling was put on the fast track when the 7th Circuit Court of Appeals, which has jurisdiction over courts in Illinois, Indiana and Wisconsin, decided to consolidate it with three same-sex marriage cases out of Indiana.
At the oral arguments later this month, state attorneys general from Indiana and Wisconsin will get about 20 minutes each to make arguments or, more likely, to answer questions from the judges; the attorneys representing the same-sex couples who are defendants in the case will get equal time. Molly Collins of the ACLU of Wisconsin says the entire hearing will likely last around 90 minutes.
Collins says it is not clear whether the judges will issue a separate ruling on the Wisconsin law or a combined decision. The court could rule as early as October, and it could be one of the cases the U.S. Supreme Court considers if, as expected, it weighs in on the issue next year.
All briefs and replies are due to the court by Aug. 11. Collins says the attorneys on the case have been working "around the clock."
