Heterosexual professor with lesbian daughter says wording of anti-gay-marriage amendment vote was illegal
MADISON, Wis. — The Wisconsin Supreme Court was asked Thursday, April 9 to decide whether the state’s 2006 ban on gay marriage was properly put to voters.
William McConkey, a University of Wisconsin-Oshkosh political science instructor, claims the referendum illegally put two issues to voters at the same time: whether to ban gay marriage and whether to outlaw civil unions. A Dane County judge dismissed the case last year, and the 66-year-old Baileys Harbor man appealed to the District 4 Court of Appeals.
On Thursday, the appeals court in Madison asked the seven-member Supreme Court to take the case instead. The appeals court said the case presents several new legal issues that should be decided by the state’s highest court.
"The validity of the marriage amendment is a matter of significant public interest with statewide implications," the three-judge panel wrote.
The request comes one week after the Iowa Supreme Court made that state the third to legalize gay marriage. On Tuesday, April 7, Vermont lawmakers overrode the governor’s veto to become the fourth.
The Wisconsin Supreme Court has discretion to review the case or ask the appeals court to rule. Three or more justices would have to agree to take the case.
The Wisconsin Family Council, which championed the amendment, warned justices could "overrule the expressed will of the people" if they take the case and strike it down.
"We cannot ignore the events of the last week and their potential impact on this decision," said CEO Julaine Appling, noting the events in Iowa and Vermont along with Tuesday’s re-election of Chief Justice Shirley Abrahamson, who was supported by the state’s biggest gay rights group.
A ruling striking down the Wisconsin amendment would not legalize gay marriage here because state law still defines marriage as a union between husband and wife. However, it could pave the way for lawmakers to eventually allow it or advocates to file additional lawsuits seeking that right.
The referendum asked whether to rewrite the state constitution to define marriage as between one man and one woman and outlaw the state from granting a similar legal status to unmarried individuals. Nearly 60 percent of voters approved.
The lawsuit raises two major legal issues. The first is whether the two-part question violated a clause in the state constitution that limits referendum questions to a "single subject."
The second is whether an individual voter such as McConkey, a straight man who has a gay daughter, has the legal standing to sue. Attorney General J.B. Van Hollen argues he does not.
In his ruling last year, Dane County Circuit Court Judge Richard Niess said McConkey could sue. But he ruled the two clauses in the referendum question were "two sides of the same coin" and properly decided with one vote.
"They clearly relate to the same subject matter and further the same purpose: the preservation and protection of the unique and historical status of traditional marriage," he said in a ruling from the bench.
Democratic Gov. Jim Doyle has already tried to chip away at the amendment’s potential impact. Lawmakers are considering his plan to create a statewide domestic partner registry and give same-sex couples 43 benefits enjoyed by married couples, including the right to visit one another in the hospital and inherit each other’s property.