Tag Archives: Christopher Clark

Why Wisconsin’s registry law must be preserved

It may not be a high profile marriage case, but to those 2,000-plus same-sex couples who’ve registered in Wisconsin, Appling v. Walker is a case that’s poised to have a tremendous impact on their lives.

Two of those couples joined us at the Wisconsin State Supreme Court for oral arguments in Appling — Kathy Flores and Ann Kendzierski of Appleton and Janice Czyscon and Crystal Hyslop of Madison. They are two of the five couples who joined Fair Wisconsin in defending the domestic partnership registry against Julaine Appling and Wisconsin Family Action’s attempt to have it declared unconstitutional. 

When our opposition filed its lawsuit in 2009, we knew that highlighting the stories of individuals who were impacted by the availability — or lack of — legal protections would be critical in defending the registry. In joining the case, the defending couples have made public some of their most private moments — times when they have been subjected to homophobia and discrimination.

Flores has several serious health issues. In 2009, she was in an Appleton hospital and wanted Kendzierski by her side during a procedure. The nurse told Flores her “friend” would be more comfortable in the waiting room. Flores explained their relationship but the nurse refused to let Kendzierski join her.

Flores successfully advocated for herself, however. She ultimately persuaded the doctor to allow Kendzierski’s presence during the procedure, but the fact that she had to deal with discrimination at such a traumatic time illustrates why the registry is so important.

Czyscon and Hyslop have been together for 33 years. As they plan for their future, the protections the registry provides for hospital visitation, family medical leave and inheritance are critical for them to care for each other. I remember their excitement when we gathered outside the Dane County Clerk’s office at 5 a.m. on Aug. 3, 2009, so they could become the first couple registered in the county. That was when I fully realized the enormity of what domestic partnerships meant for Wisconsin.

It’s true that today, seven years after Wisconsin voters banned marriage equality and civil unions, the conversation about equality is vastly different. Even conservative Justice Michael Gableman made that point during oral arguments. It’s surprising that we are defending such a limited set of legal protections while other states are fighting for full marriage equality.

But before we can move forward, we have to protect our previous victories. We are extremely fortunate to have Lambda Legal representing Fair Wisconsin and our five couples who volunteered to be defendants in this case. Christopher Clark, Lambda Legal’s senior staff attorney, made an impassioned presentation to the Supreme Court, laying out the clear, logical reasons why the registry does not violate our constitutional amendment while also sharing the critical need for same-sex couples to have basic legal protections.

There was a sharp contrast between Clark’s arguments and our opposition’s attempts to strip the most basic protections from same-sex couples.

Justice David Prosser summed up the religious rights’ legal efforts best when he said they were “just rolling the dice.”

Wisconsin has fallen far behind our neighbors and many parts of the country but a victory in the Supreme Court will prevent us from falling farther in terms of progress and equality.

Katie Belanger is the president of Fair Wisconsin.

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.

Lambda asks Wisconsin Supreme Court to uphold partnership law

Lambda Legal has filed a brief on behalf of Fair Wisconsin and five same-sex couples asking the Wisconsin Supreme Court to uphold the state’s domestic partnership law as constitutional.

The high court will hear oral arguments in the case on Oct. 23.

Lambda senior staff attorney Christopher Clark said, “The domestic partnership law in Wisconsin is without question constitutional. The limited protections provided by domestic partnerships are a far cry from the significant rights, benefits and responsibilities associated with marriage. To suggest that the two types of relationships are impermissibly similar is an anti-gay stretch of the imagination.” 

Wisconsin Gov. Jim Doyle signed the partnership bill in June 2009, several years after the state enacted a right-wing sponsored constitutional amendment defining marriage and any equivalent arrangement as only the union of a man and a woman.

The partnership law grants limited rights to registered same-sex couples, including hospital visitation and the ability to take a family medical leave to care for a sick or injured partner. 

Wisconsin Family Action, an anti-gay group, sued to overturn the partnership law, alleging that it violates the marriage amendment.

Lambda Legal has intervened on behalf of Fair Wisconsin and five same-sex couples.

In December 2012, the state court of appeals upheld the partnership law.

WFA challenged that decision, turning to the state Supreme Court.

Fair Wisconsin president and CEO Katie Belanger, in a news release, said, “Wisconsin’s same-sex couples need the domestic partnership registry – it provides important protections in a state that has banned same-sex couples from having the freedom to marry. The Wisconsin Court of Appeals rejected the plaintiffs’ arguments as ‘nonsense,’ and that hasn’t changed.”

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

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.