News analysis | State’s high court considers overturning domestic partner registry law

Louis Weisberg, Staff writer

While a band of states sprinted forward on marriage equality in recent weeks, Wisconsin activists were battling in the state’s highest court just to keep a domestic partner registry law on the books.

The registry accords limited but critical protections to same-sex couples and their families, according to its supporters.

The state’s leading anti-gay Christian group, Wisconsin Family Action, contends that by providing same-sex couples with any of the rights associated with marriage, the registry law violates the state’s Constitution.

An Oct. 23 hearing before the state’s Supreme Court was the third attempt by WFA president Julaine Appling to overturn the registry law. Two lower-courts dismissed her suit, which an appeals court called “nonsense.”

Nonetheless, Appling’s most recent day in court was her best chance of winning. The Wisconsin Supreme Court is heavily politicized and dominated 4–3 by justices aligned with the conservative political agenda. Justice David Prosser, in fact, promised during his 2011 retention campaign to support the policies enacted by Gov. Scott Walker.

Other conservatives on the bench have received formidable campaign funding from special interests allied politically with WFA.

As a formality, Walker is named as one of the defendants in Appling’s suit. But he and Attorney General J.B. Van Hollen have both declared the registry law unconstitutional and refused to defend it in court, a responsibility that was assumed by the statewide equality group Fair Wisconsin.

‘Far Cry’ from marriage

Appling and WFA were behind the 2006 constitutional amendment that banned same-sex marriage along with “any legal status identical or substantially similar to that of marriage.” Appling insists that the registry law, also known as Chapter 770, is unconstitutional because it mimics marriage. 

The Assembly narrowly approved Chapter 770 in 2009 to provide same-sex couples with such basic rights as the ability to inherit a partner’s estate in the absence of a will, access to family medical leave to care for a sick partner, and hospital visitation rights. Then-Gov. Jim Doyle, D, signed the bill into law.w

Defending the registry law on behalf of Fair Wisconsin and five registered same-sex couples, Lambda Legal attorney Christopher Clark told the court that the limited set of rights bestowed by the registry is “a far cry” from marriage. Furthermore, unlike marriage and civil unions, he said, the registry law requires no commitment of exclusivity, no formal legal mechanism for dissolving the arrangement and no requirement of mutual obligation of support — key legal components of civil marriage.

Registered same-sex couples from Wisconsin are not recognized as married in other states where same-sex marriage is legal, Clark added. The 2009 law was crafted with the help of legal experts specifically so that it would not violate the intent of the 2006 constitutional amendment, he said.

Justice Michael Gableman, a leading advocate on the bench for Walker’s political agenda, grilled Clark about which rights — and how many rights — would be required to create a domestic arrangement substantially similar to marriage. Other justices echoed that line of questioning.

But Austin Nimocks, an attorney with the Scottsdale, Ariz.-based anti-gay Alliance Defense Fund, argued on behalf of WFA that the plaintiffs’ objection was not based on the rights themselves or even the number of rights, but rather on the “formation requirements” of the law. He said those requirements closely resemble those of marriage. For example, he said the minimum age requirement and the ban prohibiting closely related people from registering as partners both reflect traditional marriage requirements. 

“There is no other legal status under Wisconsin law that is so specific,” Nimocks argued. “I believe (the registry contains) the essence of what marriage is . . . the features are very, very similar.”

Clark countered that in campaigning for the 2006 amendment, its backers expressly told voters that it would not prevent the enactment of other legal measures protecting same-sex couples. Amendment proponents promised the law would ban only marriage and “Vermont-style marriage,” a reference to civil unions in Vermont at the time, which provided partners with all of the privileges and responsibilities of marriage. Vermont has since enacted full marriage rights for same-sex couples. 

Gableman agreed: “Sponsors of the amendment told voters and legislators that the law would allow them to create some sort of (measure supporting same-sex couples) as long as it wasn’t a ‘Vermont-style marriage,’” he said.

Clark also told the court that overturning the registry law would cause “very real legal ramifications for (registered) couples and their families.” Employers, including a growing number of municipalities in the state, use the registry as the basis for determining whether same-sex couples are eligible for health care and other employment benefits extended to partners of workers, he explained.

Nimocks suggested that the plaintiff was not asking the court to retroactively undo registrations that have already been occurred, but rather to prevent couples from registering in the future.

Rolling the dice

Clark noted that the legal arguments employed by WFA’s attorneys to overturn the law have changed over the course of litigation. But Justice Patience Roggensack, who sides with Republicans on the bench, responded that it’s not unusual for lawyers to change their arguments as cases progress. What was unusual about this case, she said, was that its opponents insisted on invalidating the entire law as opposed to challenging a specific aspect of the law. 

“It’s something very different from what we usually see,” she said. 

Prosser noted that Nimocks was “rolling the dice here” by hinging the case on the “constituent elements” of the registry law — that is, for focusing his argument on the requirements for registering as domestic partners rather than the rights accorded under the law. He said Nimocks’ strategy, if he loses, would give the Legislature an opening to go back and add additional benefits to the law — “bing, bing, bing,” as he put it.

Following the nearly hourlong hearing, reporters and television cameras crowded around the pro-equality contingent outside the courtroom. Kathy Flores and Ann Kendzierski, a same-sex couple from Appleton and defendants in the case, told reporters that their inclusion on the registry grants them crucial rights, such as ensuring they can see each other in the hospital. With tears in her eyes, Flores described how hospital staff refused to let Kendzierski see her when she was diagnosed with cancer.

“(The registry) is . . . how we take care of each other,” Flores told reporters.

Elephants in the room

Leaders on both sides of the case described themselves as “cautiously optimistic” after the hearing, although Appling indicated that she believed the judges’ questions did not favor her position.

“I have seen many times when justices ask questions and then turn around and vote the other way,” she said hopefully.

Appling, suffering from a bad case of laryngitis, appeared weary.

“I’ve lived for this day for four years,” she said. “I’m glad it’s over. We rest in the hands of the justices.”

Appling’s high-profile case in the name of “protecting marriage” has brought ridicule to her personally because she’s never been married and has lived for many years with another never-married woman in a home the two own together in Watertown.

Appling was accompanied in court by a contingent of people that included her longtime “roommate” Diane Westphal and James Maillette, WFA’s executive vice president. In an introduction posted on YouTube in January 2013, Maillette made a point of presenting himself as married with three sons.

Although fundamentalist Christian beliefs are at the heart of WFA’s mission, as well as its motive in opposing the registry law, the words “bible” and “God” were not mentioned during the hearing, nor during Appling’s conversation with WiG that followed the hearing. Neither were the words “lesbian,” “gay” or “homosexual.”

Clark said the changes in language and tone that have evolved since same-sex marriage was a new concept reflect how far society has moved forward on the issue. The most recent Marquette University Law School poll showed that 53 percent of Wisconsinites now favor same-se marriage.

Still, one thing that hasn’t changed is the insistence of anti-gay activists that same-sex marriage will destroy traditional marriage. That argument was another  elephant that went unspoken in the courtroom, and Appling only brought it forward in speaking with WIG following the hearing.

Perhaps that’s partly because the argument has been discredited by facts. The northeastern United States, which has the highest concentration of states that allow same-sex marriage, also has the lowest divorce rates. Massachusetts, which in 2005 became the first state to legalize same-sex marriage, has the lowest divorce rate of all the states.

It’s unclear how the carefully choreographed dance around the real issues will affect the justices’ decision. Both sides asked the court to consider only the technicalities of a case that two lower courts found had no legal merit. And, as Clark pointed out in presenting his case, the constitution only permits a finding in favor of the plaintiffs if there is “no reasonable doubt” that the registry law does indeed create a legal status identical to marriage.

That’s probably why the justices’ questions, especially those of Gableman, seemed to favor the registry’s supporters, despite the court’s conservative bent. 

“This is all a veiled effort to undermine the ability of gay and lesbian couples to be together and take care of each other,” said Katie Belanger, president of Fair Wisconsin, following the hearing. “The lower courts have been very clear about the legal claims in this case.”

Clark expressed confidence that “the court will honor the intent of the legislation in 2009” and “do the right thing.”

But Belanger agreed with Appling about one aspect of the case: “It’s been a long road,” she said.

The high court’s justices are expected to issue their final say on Appling v. Scott Walker by June 2014. 

To read Belanger’s article “Why the registry law must be preserved,” click here.