Updated: Appeals court upholds Wisconsin domestic partner registry

Gay civil rights advocates in Wisconsin got some holilday cheer on Dec. 21, when Wisconsin’s 4th District Court of Appeals said the state’s domestic partnership registry is constitutional.

The anti-gay group Wisconsin Family Action had filed suit against the measure, which former Democratic Gov. Jim Doyle signed into law in 2009. WFA’s Julaine Appling alleged that the registry violated a 2006 constitutional amendment approved by Wisconsin voters banning same-sex marriage or its equivalent.

The appeals court panel disagreed. The judges affirmed a lower-court ruling that the partnership law does not violate the 2006 amendment because “... it would ‘take pages’ to list the rights and obligations that go with marriages but not domestic partnerships. …It is not necessary to list that many here to demonstrate that ... the rights and obligations of marriage are not substantially similar to the rights and obligations of domestic partnerships.”

Lambda Legal attorney Christopher Clark said, “The court has affirmed what we have maintained all along – it is ridiculous to suggest that a domestic partnership law could be considered anything closely resembling a marriage for purposes of state law.

“In fact, the Wisconsin Court of Appeals rejected the plaintiffs’ arguments as ‘nonsense.’ We fought off this ugly attack against the rights and protections currently available to same-sex couples and their families in Wisconsin – a sweet holiday present to loving couples and families.”

The registry provides limited legal protections and benefits to same-sex couples, including hospital visitation and the ability to take family medical leave to care for a sick or injured partner. About 2,000 couples have joined the registry, according to Katie Belanger of Fair Wisconsin, who added that a new count would come with the new year.

On Dec. 21, the appeals court said Appling had the burden of proving beyond a reasonable doubt that voters, when they passed the marriage amendment, intended to prohibit the particular type of domestic partnership created by the Legislature.

The court concluded that Appling “fell far short of meeting her burden.”

The court said, “there is little reason to think informed voters believed that the marriage amendment language would prohibit the domestic partnerships at issue here.”

Belanger said, “We are pleased that the court upheld the limited protections provided by domestic partnerships because they are essential in allowing committed same-sex couples to care for each other in times of need.”

She added, “This is an exciting day for Wisconsin. Domestic partnerships marked our state’s first step toward full equality in nearly 30 years. This decision will ensure that we can continue advancing equality for lesbian, gay, bisexual and transgender Wisconsinites in the years ahead.”

Appling originally filed her case with the Wisconsin Supreme Court, seeking an emergency injunction to prevent same-sex couples from registering. But the High Court declined original jurisdiction in November 2009, forcing Appling to take the case to a lower court.

The never-married Appling has lived for decades with another never-married woman in a home the two own together in Watertown.

After being rejected by the Supreme Court, Wisconsin Family Action and the conservative Alliance Defense Fund refiled the challenge in Dane County Circuit Court in August 2010. In March 2011, Walker fired the counsel Doyle had hired to defend the case.

Fair Wisconsin and Lambda Legal sued to intervene in the case, which right-wing Attorney General J.B. Van Hollen and Gov. Scott Walker refused to defend. The attorney general of a state is expected to defend state laws in court, but Van Hollen agreed with WFA that the registry was unconstitutional.

But Lambda and FW continued their defense and, last summer, they secured a victory when Dane County Circuit Judge Daniel Moeser ruled that the registry is constitutional and that a domestic partnership status is not “substantially similar” to marriage.

WFA then challenged Moeser’s ruling. The district appeals court tried to bump the case up again to the Supreme Court, but the court sent it back.

Appling v. Doyle is likely to finally be heard by the Wisconsin Supreme Court in 2013, which is also when the U.S. Supreme Court will take up two marriage equality cases – one challenging California’s anti-gay constitutional amendment and another challenging the law barring the federal recognition of legal same-sex marriages.

“We will appeal this decision because this domestic partnership scheme is precisely the type of marriage imitation that the voters intended to prevent,” said Austin Nimocks, a plaintiff’s attorney with the Alliance Defense Fund, in a statement issued on Dec. 21.

Appling stated, “We are disappointed with the … court’s opinion, but once again it does not weaken our resolve to defend Wisconsin’s marriage amendment. The people of Wisconsin have strongly affirmed the lifelong, faithful union of a man and a woman as the fundamental building block of civilization. Our system of government serves no purpose if politicians can ignore the will of the people with impunity.”

Belanger said, “Fair Wisconsin, represented by Lambda Legal, is the sole defending party in this case and will continue to defend the legislation in any subsequent appeals."