Supreme Court cases have no bearing on legal challenge to Wisconsin’s partner registry

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Julaine Appling

The Supreme Court’s recent rulings on same-sex marriage have no effect on a right-wing Christian group’s lawsuit seeking to overturn Wisconsin’s domestic partner registry law, according to legal experts.

Ironically, one of the reasons the High Court decisions have no bearing on the Wisconsin case is that the state’s registry law bears no resemblance to marriage. Julaine Appling, the head of Wisconsin Family Action, is challenging the registry law precisely because she claims it conveys a status that is “substantially similar” to marriage to same-sex couples, which is prohibited under a 2006 amendment to the Wisconsin Constitution. Appling sponsored the amendment and the voters of the state approved it by a large margin.

Only two weeks before the landmark U.S. Supreme Court decisions were to be announced, the Wisconsin Supreme Court agreed to hear Appling’s challenge. She lost at both the circuit court and appeal court levels.

In one of the High Court’s decisions, the justices ruled that plaintiffs seeking to reinstate California’s Proposition 8, which banned same-sex marriage in that state, had no legal standing to pursue their grievance through the federal appeal system. That ruling let stand a trial court decision finding Proposition 8 unconstitutional.

The court’s other decision gutted the Defense of Marriage Act, which had banned same-sex couples legally married in their states from obtaining federal marriage benefits received by heterosexual married couples.

But Appling’s case is in an entirely different legal category than either of the cases argued before the U.S. Supreme Court, according to Christopher Clark, senior staff attorney at Lambda Legal’s Midwest Regional Office in Chicago.

For one thing, Appling’s case is not in the federal court system. For another, the domestic partner registry provides same-sex couples with only about 42 of the more than 200 benefits granted to opposite-sex couples under Wisconsin law – and the more than 1,100 provided by U.S. law.

Former Gov. Jim Doyle, D, signed the registry into law in 2009.

Lambda Legal and Fair Wisconsin filed as interveners to protect the registry from Appling’s challenges after both Gov. Scott Walker and Attorney General J.B. Van Hollen declared the law unconstitutional and refused to defend it in court. Van Hollen told WiG through a spokesperson that he remains “comfortable with the decision he reached, and the recent Supreme Court decision doesn’t change that.”

Clark said Appling’s assertion that the registry’s 42 legal protections are identical to marriage is “laughable.” The basic legal protections the registry confers include the right for one member of a couple to visit the other in the hospital, despite the two not being married or being close relatives. Appling, who has never married and has lived for many years with another never-married woman in a home they own jointly in Watertown, contends that such protections for same-sex couples endanger heterosexual marriages and violate the Christian religion.

Appling and other adherents of fundamentalist Christianity contend that biblical law, as they interpret it, supersedes secular law. They also believe that laws in opposition to their religious beliefs violate their religious freedom.

Clark said the Supreme Court rulings might influence the Wisconsin case to the extent that they “highlight what marriage is and … the social and legal dimensions of that.”

Unlike partner registration,“(marriage) is a full and complete package,” he said.

“To walk into court and say with a straight face that this (the domestic partner registry) is similar to marriage is really a joke,” Clark added, saying he’s confident the court will find that Appling’s case has no merit.

Most political observers think that Van Hollen and Walker understand the registry law does not violate the state’s constitutional amendment, but they’re unable to oppose right-wing Christian voters without being ousted from office. The powerful religious right virtually determines the outcome of Republican primaries in the state.

But conservative justices who also owe their elections to the Christian right dominate the Wisconsin Supreme Court. Two of those justices are reputed to be closeted gay men who fear being outed.

Those factors could complicate the outcome of the case, despite what Clark considers the glaring lack of legal merit.

The Wisconsin Supreme Court has not announced when it plans to hear or rule on the case.