Amendment banning civil unions and marriage

What does the proposed amendment say?

“Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.”

Is marriage between people of the same sex recognized in Wisconsin now?

No.  Wisconsin law does not recognize same-sex marriage.  See In re Interest of Angel Lace M., 184 Wis. 2d 492, 504 n.1, 516 N.W.2d 678 (1994) (“Wisconsin does not recognize same-sex marriages.”); Wis. Stat. 765.001(2) (“[M]arriage is a legal partnership between 2 equal persons, a husband and wife . . .”). In fact, gay or lesbian couples who leave Wisconsin to marry elsewhere and then return may be charged with a crime.  See Wis. Stat. 765.04 (“Marriage abroad to circumvent laws”).

What is “a legal status identical or substantially similar to that of marriage”?

The sponsors of the amendment have been evasive about what legal protections and rights they expect the amendment to take away. 

The second sentence almost certainly bans unmarried partners (same-sex or opposite-sex) from entering into civil unions or comprehensive domestic partnerships, such as those enacted by the legislatures of Connecticut, Vermont and California.  Such unions define the partners’ enforceable rights and obligations with respect to one another and give some legal recognition to their relationships, but do not constitute marriages.  President Bush has endorsed such civil unions in the past.  See Elisabeth Bumiller, “Bush Says His Party is Wrong to Oppose Gay Civil Unions,” New York Times (Oct. 26, 2004).

Beyond civil unions, the second sentence puts at risk a wide variety of legal rights, employment benefits, and contractual commitments that unmarried domestic partners take for granted.  See questions and answers below. At a minimum, as Wisconsin State Senator Scott Fitzgerald acknowledged during the public hearing on the amendment on November 29, 2005, the courts will inevitably become involved in deciding whether a particular protection – or combination of protections – will be considered “substantially similar” to marriage.  Thus, rather than taking this contentious social issue out of the courts, the amendment actually invites litigation.

Does the proposed amendment violate the U.S. Constitution?

The Supreme Court has expressly left the question open.  See Lawrence v. Texas, 539 U.S. 558, 578 (2003).  The 8^th Circuit Court of Appeals recently reversed a lower court’s conclusion that a similar amendment in Nebraska was unconstitutional.  See Citizens for Equal Protection, Inc. v. Bruning, __ F.3d __, 2006 WL 1933417 (8^th Cir. July 14, 2006), reversing 368 F.Supp.2d 980 (D. Neb. 2005) (amendment providing that “The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska” violates equal protection, the bill of attainder clause, and First Amendment rights of expressive association and petition).  Because the amendment so clearly disfavors gay men and lesbian women – a group that surely qualifies as a “discrete and insular minority” that has difficulty protecting itself in the majoritarian political process – it seems particularly vulnerable to equal protection challenge.  See United States v. Carolene Products, 304 U.S. 144, 153 n.4 (1938).  In Romer v. Evans, 517 U.S. 620, 633 (1996), the Supreme Court held that a state constitutional amendment that prohibited passage of any laws protecting homosexuals from discrimination violated the Equal Protection clause, because “it identifies persons by a single trait and then denies them protection across the board.”  The Court criticized “laws singling out a certain class of citizens for disfavored legal status or general hardships.”  Id.  The amendment – in conjunction with Wisconsin’s criminal “marriage evasion” statute, Wis. Stat. 765.04 – is also analytically similar to the criminal prohibition on crossing state lines for interracial marriage that the Court struck down in Loving v. Virginia, 388 U.S. 1 (1967), as a violation of equal protection and due process.

Will the amendment ban employers from granting domestic partner benefits?

More than 100 Wisconsin employers – including several municipal governments and law firms large and small – now offer domestic partner benefits.  See Action Wisconsin Education Fund page, http://www.awef.org/dpbenefits/index.html.  Although it is unclear whether such benefits will be invalidated, the amendment certainly invites litigation.  In Michigan, for example, the state’s attorney general concluded that a similar amendment required the state to rescind domestic partner benefits for state employees.  A state trial court rejected that interpretation, see National Pride at Work v. Granholm, 2005 WL 3048040 (Sept. 27, 2005), but the case is still on appeal.

What other legal protections and rights are threatened by the amendment?

The amendment may deprive battered women who are not married to their abusers of the protections of domestic violence injunctions or criminal statutes punishing perpetrators of domestic violence.  An abuser in Ohio was successful in having a trial judge dismiss a domestic violence count by arguing that, because he was not married to the victim, his abusive conduct could not be considered “domestic violence” under the amendment.  The Ohio appellate courts are divided.  Compare State v. Ward, 166 Ohio App.3d 188, 849 N.E.2d 1076 (Ohio App. 2 Dist., 2006) (application of domestic violence statute to unmarried couple violates amendment), with State v. Nixon, 165 Ohio App.3d 178, 845 N.E.2d 544 (Ohio App. 9 Dist., 2006).  This issue is on its way to the Ohio Supreme Court.

Hospital visitation rights, the validity of health care powers of attorney and testamentary devices such as wills and trusts, and the rights of partners to dispose of the remains of their deceased partners will also be subject to litigation and possible invalidation under the amendment.  Under current Wisconsin law, “unmarried cohabitants” (same-sex or opposite-sex) may have an equitable claim to a share of the property acquired through their partnerships when their relationships end.  See, e.g., Watts v. Watts, 137 Wis.2d 506 (1987); Ulrich v. Zemke, 258 Wis.2d 180 (Ct. App. 2002).  The validity of such claims may be called into question if the amendment succeeds.

When will the proposed amendment be on the ballot?

The amendment will be on the statewide ballot for the general election on November 7, 2006.

How many votes will it take for the amendment to become part of the constitution?

Unlike the process for amending the federal constitution, simple legislative majorities in two consecutive sessions and a simple majority in the popular vote are sufficient to deprive the rights of a minority.  The amendment has already passed the legislature.  A simple majority of those who cast a vote on the amendment in November will be sufficient to decide whether this discriminatory amendment is incorporated into our constitution.

Updated as of July 28, 2006.