Gay Opponents Challenging the State's Domestic Partnership Registry

posted by: Steve Williams 

Gay rights opponents in Wisconsin filed a lawsuit Wednesday challenging the state's domestic partnership registry on the grounds that it is too similar to marriage. This comes despite the fact that domestic partnerships only grant around 41 of the 200 plus state rights Wisconsin provides married couples, and, obviously, does not include any of the1,138 federal benefits and responsibilities same-sex couples are denied because of the federal gay marriage ban, the Defense of Marriage Act.

From On Top Magazine:

“The same-sex only, statewide domestic partnership registry mimics marriage,” Julaine Appling, executive director of Wisconsin Family Action (WFA), told Wisconsin Radio Network.

The case lists four WFA board members as plaintiffs and claims they have been harmed because their tax revenues are being used to fund the registry.

“Plaintiffs and other Wisconsin taxpayers are damaged and injured by Defendants' [the state] expenditure of tax revenues for the implementation and administration of the unconstitutional and illegal domestic-partnership registry, registration system, and Plaintiffs have standing to assert this challenge.”

Last year the group appealed to the Wisconsin Supreme Court to prevent the law from coming into force, but the court refused the case.

Further commenting on the suit, the WFA's Appling took a political swipe at incumbent Democratic Governor Jim Doyle, saying:

The governor and his liberal legislative cohorts created a legal status that is substantially similar to that of marriage. This particular registry basically mimics marriage.

In a separate statement she also threw in a "will of the people" line:

"Our system of government serves no purpose if our elected officials can completely and capriciously ignore the will of the people with impunity [...] A reasonable person observing this registry would easily conclude that it is intended to mirror marriage."

The WFA's case is somewhat bolstered by the fact that Republican Attorney General J.B. Van Hollen, who has butted heads with the Democratic governor on several occasions, has said he will not defend the registry law in court because he believes it goes against "the will of the voters".

Wisconsin's Gay Marriage Ban
Passed at the ballot in November 2006, Wisconsin's constitutional amendment banning same-sex marriage says (emphasis mine):

"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."

The latter clause is the reason why the anti-gay WFA originally tried to have the law barred from going into effect. They will use this, as well as their claim that they are harmed as tax payers, to try and challenge the registry's constitutionality.

On June 30 this year, the Supreme Court of Wisconsin unanimously upheld the viability of the ballot question that enacted the gay marriage ban. The legal challenge brought before them had alleged that the ballot question was invalid because it had in fact asked about two separate subjects, in this case gay marriages and civil unions, something which is against the rules under Wisconsin law.

Noteworthy here is that the Supreme Court did not rule on the constitutionality of the ban itself, rather the validity of the ballot question alone. Read more about that decision here.

Wisconsin's Domestic Partnership Registry

Passed as part of the biennial state budget bill, the domestic partnership registry law was approved by the state's lawmakers in mid-June 2009, and was duly signed by Governor Doyle on June 29.

Among the rights that Wisconsin's domestic partnership registry offers gay and lesbian couples are presumption of joint tenancy, family leave to care for a sick or dying partner, as well as hospital visitation and end-of-life decision rights.

However, the domestic partnership registry system falls short in several key areas. From Wisconsin Lawyer:

The range of matters affected by registering as same sex domestic partners is not comprehensive. Perhaps the most significant matters not addressed relate to ongoing property ownership, control, and management issues during the domestic partnership and to the division of property on the termination of the domestic partnership. For people who marry, these matters are addressed by Wis. Stat. chapters 766 and 767. The statutes have numerous provisions that address consumer transactions in the context of a marriage (mostly in chapters 421, 425, and 427). For purposes of those chapters, domestic partners will continue to be treated as unrelated strangers.

[...]

The failure to address such matters may have been a conscious decision by the legislature and governor to ensure that same sex domestic partnerships are not substantially similar to marriages and thus to bolster the argument that these changes do not violate the recently enacted Wisconsin constitutional prohibition on creating a status for unmarried individuals that is identical or substantially similar to marriage.⁵³ Regardless of the motives, the effect, at least, is that same sex domestic partnerships differ from marriages in substantive and important ways.

Domestic Partner Registry Defenders Prepare for Court Battle

Defenders of the domestic partnership registry not only contend that the registry is constitutionally sound in that, while it may mirror some of the rights of marriage, it remains substantially inferior, they go on to assert that this latest suit is evidence that the so-called traditional marriage groups that supported the constitutional ban on gay marriage lied in saying that they were only using it to protect marriage and not to discriminate.

From the Wisconsin Radio Network:

Wisconsin Family Action claims the registry is unconstitutional because the requirements to sign up are similar to those of a traditional marriage. Belanger says that’s far from the case, because the registry only offers only about a quarter of the state protections granted to opposite sex couples through marriage and none of the federal rights.

[...]

When the gay marriage ban was before voters in 2006, supporters said it would not prevent the creation of domestic partner registries in the state. Belanger says that just goes to show that the lawsuit is aimed at discriminating against same sex couples, not protecting marriage.

Undeniably, the domestic partnership registry does mirror civil marriage in the very small but significant amount of rights it provides.

However, to my mind it in no way reflects the social standing, the private religious significance or the full scope of rights that are granted to heterosexual married partners. It can not even be compared to the lesser but more wide reaching status of a civil partnership.

Not only have gay and lesbian couples in Wisconsin been relegated to an inferior recognition of their relationships, the WFA, as a supposed pro-family group, now seeks to take away the handful of vital protections that same-sex couples have been allowed.

Now the state's courts must decide whether the domestic partnership registry is "significantly similar" to marriage so as to violate Wisconsin's constitutional amendment or whether the vagueness of that provision and the limited nature of the domestic partnership registry will allow them to uphold domestic partnerships and continue to allow access to the important state rights that Wisconsin's same-sex couples require.