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

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.

2 churches seek to defend Illinois gay marriage ban

Circuit Court of Cook County heard oral arguments this week on a motion from two churches seeking to intervene in a lawsuit challenging marriage inequality in Illinois.

The Church of Christian Liberty and Grace Gospel Fellowship want to become defendants in the suit, Darby v. Orr, which was brought by Lambda Legal on behalf of gay couples in the state.

The churches want to participate because state and Cook County officials have said they won’t defend Illinois’ anti-gay marriage law, which they say is unconstitutional and discriminatory.

Lambda Legal marriage project direct Camilla Taylor said after the arguments, “This case has no impact on a church’s right to exercise its religious liberty. The freedom to marry who you love, whether it is someone of the same sex or someone of a different sex, is not a religious issue, it’s about the government treating all families fairly. The couples in these cases come from all walks of life, some have children, some are senior citizens – marriage is something that will touch every aspect of their lives, but will never affect a church’s ability to practice its faith.”

The lawsuit was filed last May. Another complaint was brought by the ACLU of Illinois. Together Lambda and the ACLU are representing 25 gay couples.

Two after the suits were filed, the Illinois Attorney General’s office filed papers agreeing that barring same-sex couples from marriage is unconstitutional.

The Cook County clerk and Cook County states attorney also agreed that the marriage ban is unconstitutional.

Next, clerks from Tazewell and Effingham County moved to intervene, promising to defend the ban. The court allowed their participation.

Next, the Alliance Defending Freedom, an anti-gay group based in Arizona, filed papers seeking to join the case on behalf of an anti-gay group in Illinois. Lambda is opposing the motion.

On Sept. 20, the Church of Christian Liberty and Grace Gospel Fellowship filed their own motion to intervene, which Lambda Legal also is opposing.

Right-wing Christians say they’re victims of bullying

As the gay-rights movement advances, there’s increasing evidence of an intriguing role reversal: Today, it’s the conservative opponents of that movement who seem eager to depict themselves as victims of intolerance.

To them, the gay-rights lobby has morphed into a relentless bully – pressuring companies and law firms into policy reversals, making it taboo in some circumstances to express opposition to same-sex marriage.

“They’re advocating for a lot of changes in the name of tolerance,” said Jim Campbell, an attorney with the conservative Alliance Defense Fund. “Yet ironically the tolerance is not returned, for people of faith who don’t agree with their agenda.”

Many gay activists, recalling their movement’s past struggles and mindful of remaining bias, consider such protestations by their foes to be hollow and hypocritical.

“They lost the argument on gay rights and now they are losing the argument on marriage,” said lawyer Evan Wolfson, executive director of the advocacy group Freedom to Marry. “Diversions, scare tactics and this playing the victim are all they have left.”

Among the recent incidents prompting some conservatives to complain of intolerance or political bullying:

Olympic gold medal gymnast Peter Vidmar stepped down as chief of mission for the 2012 U.S. Olympic team in May following controversy over his opposition to gay marriage.

After coming under fire from gay-rights groups in April, the Atlanta-based law firm King & Spalding pulled out of an agreement with House Republicans to defend the federal ban on same-sex marriage.

In New York, state Sen. Ruben Diaz, a Democrat from the Bronx, contends he’s received death threats because he opposes legislation to legalize same-sex marriage.

Apple Inc. recently withdrew two iPhone apps from its App Store after complaints and petition campaigns by gay-rights supporters.

One app was intended to publicize the Manhattan Declaration, a document signed in 2009 by scores of conservative Christian leaders. It condemns same-sex marriage as immoral and suggests that legalizing it could open the door to recognition of polygamy and sibling incest.

The other app was for Exodus International, a network of ministries that depict homosexuality as a destructive condition that can be overcome through Christian faith.

In both cases, gay activists celebrated the apps’ removals, while the apps’ creators contended their freedom of expression was being unjustly curtailed.

“The gay-rights groups have shown their fangs,” wrote Chuck Colson, the Watergate figure turned born-again Christian who helped launch the Manhattan Declaration. “They want to silence, yes, destroy those who don’t agree with their agenda.”

The campaign that pressured King & Spalding to withdraw from the U.S. Defense of Marriage Act case was criticized by a relatively wide range of commentators and legal experts, not just conservative foes of gay marriage.

“To think it’s a good idea to attack lawyers defending unpopular clients – I don’t have words for how stupid and wrong that is,” said Wendy Kaminer, a lawyer and writer who formerly served on the board of the American Civil Liberties Union.

However, the gay-rights activists involved in pressuring King & Spalding were unapologetic.

“If we made it such that no law firm would defend the indefensible, then good for us,” said Fred Sainz, the Human Rights Campaign’s vice president for communication. “When you have people talking about the fact that it’s no longer politically correct to be anti-equality, it’s a show of progress.”

Sainz said it was important for activists to pick their targets carefully.

“We understand there are good-hearted Americans in the middle who are still struggling with these issues,” he said. “Different activists have different ways of getting to the same end, and some of those are bound to make certain people feel uncomfortable.”

Though same-sex marriage is legal in only five states, it has for the first time gained the support of a majority of Americans, according to a series of recent national opinion polls. For some gay activists, this trend has fueled efforts to make their opponents’ views seem shameful.

“Their beliefs on this issue are very quickly becoming socially disgraceful, much in the way white supremacy is socially disgraceful,” wrote Evan Hurst of the advocacy group Truth Wins Out. “They are certainly entitled to cling to backwoods, uneducated, reality-rejecting views … but their ‘religious freedom’ doesn’t call for the rest of us to somehow pretend their views aren’t disgusting and hateful.”

However, some gay-rights supporters see the public opinion shift as reason to be more magnanimous.

“The turn we now need to execute will be the hardest maneuver the movement has ever had to make, because it will require us to deliberately leave room for homophobia,” Jonathan Rauch, a writer and guest scholar at the Brookings Institution, wrote recently in The Advocate.

“Incidents of rage against haters, verbal abuse of opponents, boycotts of small-business owners, absolutist enforcement of anti-discrimination laws: Those and other ‘zero-tolerance’ tactics play into the ‘homosexual bullies’ narrative,” Rauch wrote. “The other side, in short, is counting on us to hand them the victimhood weapon. Our task is to deny it to them.”

As ideological foes spar over these issues, the American Civil Liberties Union is confronted with a delicate balancing act. Its national gay rights project battles aggressively against anti-gay discrimination, but, as a longtime defender of free speech, the ACLU also is expected to intervene sometimes on behalf of anti-gay expression.

For example, the ACLU pressed a lawsuit on behalf of the fundamentalist Westboro Baptist Church, which has outraged mourning communities by picketing service members’ funerals with crudely worded signs condemning homosexuality. The ACLU said the Missouri state law banning such picketing infringes on religious freedom and free speech.

James Esseks, director of the ACLU’s gay rights project, said the First Amendment protection of free speech only comes into play when a government entity is seen as curtailing speech rights – which did not occur in the Vidmar or King & Spalding cases.

Delaware approves civil unions law

A bill to make Delaware the eighth state to allow civil unions or domestic partnerships for same-sex couples has cleared the legislature and Gov. Jack Markell said he looks forward to signing the measure into law.

House members debated for about three hours and rejected nine amendments before approving the bill last week on a 26-to-15 vote, prompting supporters in the balcony to erupt in cheers and applause. The senate approved the bill earlier in the month.

Opponents warned that the bill carries unintended consequences that will result in confusion in family law courts and likely will lead to lawsuits over religious liberties for those opposed to same-sex unions.

“Mark my words, there will be litigation over this,” said Douglas Napier, an attorney with the Alliance Defense Fund, a conservative religious rights organization.

With Markell’s signature, the bill would take effect Jan. 1. The legislation gives gay couples the same rights and obligations of those who are married. But it makes clear that marriage is between a man and a woman. Five other states and the District of Columbia allow gay marriage.

“I think it’s time for this bill to be passed, and it’s going to be good for so many Delawareans for years to come,” said Markell, a Democrat. “I’m really pleased with it.”

Supporters said the measure provides equal rights for homosexuals in committed relationships.

“We were all created with special, unique, beautiful differences,” said chief house sponsor Rep. Melanie George, D-Bear. “Our government respects those differences.”

Others argue it is a prelude to establishing gay marriage in the small state of about 885,000 people.

“Don’t be deceived. This bill is a precursor to same-sex marriage,” Napier said.

Lawmakers voted mostly along party lines April 14, with Democrats in favor and Republicans voting for amendments opposed by the bill’s proponents.

Eight of the nine amendments were offered by GOP lawmakers, including two similar to those that were rejected in the Senate. One would have authorized civil unions for opposite-sex couple but not those of the same sex. The other would have required that Delaware voters approve civil unions in a statewide referendum before they could take effect.

From AP and WiG reports