Wisconsin Same-Sex Domestic Partner Registry Week In Review:
Appling Challenges, Doyle Defends, Fair WI Readies To Fight
Madison - The long-promised right-wing challenge to Wisconsin’s recently enacted same-sex domestic partner registry finally arrived July 23 in the form of a petition for an original action filed directly to the state’s Supreme Court by Wisconsin Family Action (WFA), the lobbying arm of the better-known Wisconsin Family Council.
  At the crux of the petition was the claim that the 43 protections given by Wisconsin’s domestic partner status created a sort of “mimic marriage” that was “substantially similar” to the more than 200 rights conferred to wedded couples by the state’s civil marriage license. “The form of domestic partnership created by the domestic partnership registry is prohibited by Art. XIII, sec. 13 of the Wisconsin Constitution by creating and requiring recognition of a legal status substantially similar to that of marriage,” the petition stated. “Such domestic partnerships are entered into by same-sex partners and are officially created and acknowledged in essentially the identical way that marriages are entered into by a man and woman and are officially created and acknowledged.”
  According to lead WFA litigant and possibly domestic partnership-eligible (see separate story) Juliane Appling,  the new registry was an “assault” on the people of Wisconsin. “This registry is an assault on the people, the state constitution, the democratic process, and the institution of marriage, which the people voted so recently and so overwhelmingly to protect,” Appling was quoted in the press release. “Gov. Doyle and the legislators who approved the registry in the budget are obviously more concerned with advancing the agenda of a fringe activist group than representing the people who elected them.”
  The “fringe” group Appling alluded to appears to be Fair Wisconsin, the state’s only full-time statewide LGBT civil rights organization. That “activist group” provided extensive voter education in key legislative districts during the last two election cycles that resulted in the “democratic process” selecting elected officials that supported the registry provision in the state budget passed in late June.
  The suit naming Appling, along with WFA board members Jerry Hiller and E. Lee Webster, was filed by Austin Nimocks and Brian Raum, attorneys for the Alliance Defense Fund, the judicial activist organization founded by Focus on The Family’s James Dobson. Assisting attorneys include Richard M. Esenberg and Michael D. Dean.
  Dean is the Waukesha attorney who attempted to insert his one-man First Freedom Foundation along with eight  city and town governments into the ACLU domestic-partner lawsuit against the state in 2005. He did so after then Assembly Speaker John Gard (R-Peshtigo) attempted to insert the Legislature into the same case using Alliance Defense Fund attorneys. Judges later threw out both attempts as inappropriate.
  Fair Wisconsin was quick to respond to the WFA suit. “Fair Wisconsin is currently reviewing this lawsuit with our legal counsel, and we are prepared to defend domestic partnerships,” Executive Director Katie Belanger said. “We are hopeful that the State Supreme Court will recognize that domestic partnerships are not substantially similar to marriage, and will arrive at a fair and just decision that upholds these basic protections for same-sex couples.”
  Belanger cited the May 6 opinion by the nonpartisan Wisconsin Legislative Council supporting the legality of domestic partnerships under the constitutional amendment. “It is reasonable to conclude that the domestic partnerships proposed…do not confer a legal status identical or substantially similar to that of marriage for unmarried individuals in violation of art. XIII, s.13,” the council’s opinion stated.
  The Wisconsin ACLU called for the petition to be denied. “The American Civil Liberties Union of Wisconsin believes that the Wisconsin Supreme Court should deny a petition asking it to take original jurisdiction in a challenge to the state’s new domestic partnership registry,” Executive Director Christopher Ahmuty said  in a prepared statement. “The petitioners’ hyperbolic assertions of disputed facts and tortured effort to make this dispute one over “social meaning” rather than common sense are powerful arguments to deny their petition. Let them go to Circuit Court as is usual in such circumstances. “
  Ahmuty also questioned the timing of the WFA suit. “The petitioners admit that it is not possible for the Court to act before the registry takes effect, so their disingenuous concern for domestic partners is insulting at best,” he said.
  Ahmuty called the WFA suit’s logic “absurd.” “The notion that the facts in this matter are simple is absurd,” he said. “They assume that the majority of voters agree with their understanding of the constitutional amendment without any basis.”
  In follow-up interviews about the WFA suit, Appling characterized both Governor Jim Doyle and the state legislature as “sneaky.” That brought a direct response from Doyle.
  “These are people who, by the way - when the Wisconsin Constitutional Amendment was passed - made repeated public statements saying that this would not preclude domestic partnership legislation,” Doyle told WIXK reporter Jeff Peterson. “Now they’re apparently singing a different tune.”
  Doyle doubts the suit will be successful. “I believe that in Wisconsin we have found a way that doesn’t get us embroiled in the whole marriage issue -  which people have strong feelings on both sides and on which out constitution is now clear,” he said. “It is a way to provide basic rights for people... like being able to visit in the hospital, being able to make end-of-life decisions... I think most people, wherever you are on the issue of gay marriage thing that there should be some basic rights that people have.”
  For gay couples planning to register their partnerships, the late timing of the WFA suit will give them a window of opportunity. Four of the seven Supreme Court justices would have to agree to take the case, and the court’s new session does not begin until September.
  Former Justice Janine Geske, now a professor at Marquette, told the Milwaukee Journal-Sentinel that she believes the case will most likely be sent to the lower courts. “The court tends, even when it believes it may get the case down the road, to generally allow the whole system to react,” she said.
  Former Justice William Bablitch also pointed out that the court might wait to act until it decides a case from University of Wisconsin-Oshkosh professor William McConkey that seeks to make the gay marriage ban unconstitutional. That suit said the amendment was improperly worded when it was sent to the voters.
  “If they decide the ban is unconstitutional, that takes care of the question,” Bablitch said.
  Fair Wisconsin has established a Legal Challenge Fund to help defend against the WFA lawsuit. In an email to supporters Belanger urged contributions to “make sure that this hard-earned victory is not snatched away by our opponents.”
  “I am making this urgent request on behalf of our state’s over 15,000 same-sex couples who desperately need these crucial protections,” Belanger wrote   “The time is now, and the need could not be more real.”
  For more information about the Fair Wisconsin Legal Challenge Fund, visit the group’s website at: www.fairwisconsin.com.