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.
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.
The Outagamie County Board voted 19–14 on Sept. 24 to extend employment benefits, including health insurance and bereavement leave, to the registered domestic partners of county workers. The new benefits go into effect Jan. 1, 2014.
County Executive Thomas Nelson proposed the resolution in July, saying the city must provide equitable benefits to same-sex couples in order to compete for high-quality workers. More than 300 private companies and 26 public employers in Wisconsin already offer domestic partner benefits, putting pressure on others to do the same in order to recruit and retain the most skilled personnel.
Since July, the county board had kept the resolution bottled up in committee. But Nelson wisely submitted the proposal using an administrative maneuver that required the full board to vote on it within 60 days, said Katie Belanger, president and CEO of Fair Wisconsin.
The final vote was razor thin. Nineteen votes are the minimum required for passage. Two supervisors abstained from voting and one was absent.
The debate during the Sept. 24 county board meeting was spirited and contentious, according to LGBT community members who were present. An approximately equal number of citizens spoke for and against the resolution, said John Smallwood, Fair Wisconsin’s advocacy and organizing director.
Detractors, including Wisconsin Family Action executive vice president James Maillette, raised objections based on their fundamentalist Christian beliefs. Some expressed fears about the cost of implementing the new benefits.
The Appleton Post Crescent quoted right-wing Supervisor Jim Pleuss as saying that offering the benefits would be “legitimizing a lifestyle that goes contrary to family values.” He also said the benefits would lead to fraud, because two same-sex roommates could use it to acquire health insurance.
“You and I both know the costs of health care, nowadays,” he added.
Kathy Flores, diversity coordinator for Appleton, said her city encountered no increase in health care costs during the first year after implementing domestic partner benefits. Although Appleton, the county seat of Outagamie County, extended the benefits to its workers three years ago, the surrounding county is much more conservative, encompassing a large swath of rural area.
While great strides have been made toward equality in recent years at the local level in Wisconsin, the outcome of the Sept. 24 vote could have gone either way. For that reason, Belanger said it was an even “greater victory.”
“There definitey was a lot of opposition present at this meting – more than we normally see at (such) meetings,” Belanger said. “There was a lot of hateful, homophobic rhetoric. But there were also a lot people standing up for equality. One of the county supervisors stood up and said her sister-in-law is a lesbian, and her family treats her with the same love as everyone else – and that’s what these issues are about.”
Activists credited Fair Wisconsin with getting large numbers of pro-fairness citizens to contact their representatives on the board and ask for their support. FW’s strong online social network has played a pivotal role in similar votes in other jurisdictions.
Flores said Outagamie County resident Shannon Kenevan delivered the most moving presentation during the public debate. He later recalled what he’d said in a Facebook post.
Explaining that he was thinking of his 8-year-old and 11-year-old daughters when he spoke, Kenevan wrote, “I have no idea what their sexual orientations are or might be. But here’s what I know: At some point in the future one of them may have a partner who’s male, and one may have a partner who is female. Their partners may both work for Outagamie County. Both of these girls have value and deserve to be treated with dignity, and each should be given equal rights and offered equal benefits regardless of their sexual orientation.”
Appleton City Council voted 12 -4 to retain the city’s diversity coordinator position.
Eliminating the position, which is currently held by Kathy Flores, was one of many proposals that aldermen debated during a seven-hour overnight meeting on Nov. 10 to consider ways of closing the city’s $2.5-million budget gap.
Although the position was retained, the diversity coordinator will no longer report to the mayor’s office, as it did in the past, but rather to the community development department. The shift in reporting will ensure that council members are kept abreast of the coordinator’s activities on behalf of Appleton and neighboring communities.
Advocates contend that the program, which began in 1997 under a different name, is more important now than ever. All of Appleton’s population growth over the next 20 years is projected to come from the city’s African-American, Asian (particularly Hmong), Latino and Native-American communities.
The coordinator builds bridges among communities, including the LGBT community, and creates an atmosphere of cross-cultural appreciation. Flores said the shift in reporting might expand her role to include more work in such areas as urban development and housing.
“I’m thrilled to be continuing this work in the city of Appleton,” Flores said. “Hopefully, we’ll continue to show how good it is that we continue this program.”
Flores said the position has regional value because it helps major employers in Appleton and neighboring communities, such as Kimberly Clark in Neenah, recruit and retain a diverse and top-notch workforce.
“I’m grateful to the 12 alder-folk who understand the importance of having this program in the City of Appleton, and I look forward to working with all of them and hopefully bringing them all on board,” Flores said.
The Appleton official charged with outreach to the city’s multi-cultural communities, including the LGBT community, could fall victim to the budgetary axe as aldermen scramble to erase a $2.5-million city deficit.
In a survey asking city council members which programs they believed could be cut, they ranked the diversity coordinator position at the top in its category. Supporters hope to change aldermanic minds by educating them about the essential role that the position, currently held by out lesbian Kathy Flores, plays in the quality of life and economic development of the city.
“I’m hopeful that the position will remain,” said Ald. Jeffrey Jirschele (15th). “I think if we can paint the picture the right way, they’ll see it.”
Advocates for saving the position have created a Facebook page under the name Retain Appleton’s Diversity Program. The page contains talking points about the program and urges constituents to contact their alderman with the information prior to the Oct. 4 city council meeting.
Advocates contend that the program, which began in 1997 under a different name as part of the Appleton Police Department, is more important now than ever. All of Appleton’s population growth over the next 20 years is projected to come from the city’s African-American, Asian (particularly Hmong), Latino and Native-American communities.
Part of Flores’ job is to build bridges among these communities and create an atmosphere of cross-cultural appreciation. She works with the multicultural committees that advise the mayor’s office, troubleshooting problems and raising diversity awareness, including LGBT awareness.
This year, Flores helped to promote Appleton’s first Juneteenth celebration, which bought nearly 2,000 people of all races to the city’s Houdini Plaza. The event, which marks the end of slavery in the United States, attracted major corporate sponsors. Bola Delano-Oriaran, who serves on the mayor’s African-American Advisory Committee, said the diversity coordinator is a valuable resource for helping to organize such events and programs. The committees and the diversity coordinator also have been successful in working together to take “a pro-active approach in addressing diversity issues,” she said.
“One of the reasons Appleton is a good place to live is that you rarely hear about incidents that deal with biases, stereotypes or discrimination,” she said.
Shannon Kenevan, program team leader for Harmony Café, said that “just having the position in place sends the message that this is a welcoming and diverse community.” He gives Flores high marks for her performance in the position.
“She’s done phenomenally,” Kenevan said. “She brings a real passion to the work. She has really tried to reach out to all the different communities and brought a lot of visibility to the position.”
The diversity coordinator also plays a key role in economic development by helping local companies recruit and retain a diverse workforce. If Kimberly Clark, for instance, is trying to recruit or transfer African-American, Latino or gay workers to Appleton, the company can turn to Flores for support. By connecting the workers with local community groups and amenities of interest to them, Flores helps seal the deal by demonstrating that Appleton is a great place for them to live and work.
At the same time, by helping to foster the growth of a skilled and diverse labor force, the diversity coordinator helps attract new companies to the Fox Valley, Jirschele said. This is especially important as Appleton transitions away from an industrially based economy.
“Talent comes in a variety of different packages, whether gay, black, Hispanic, white or Asian,” Jirschele said. “We need to be open and we need to be welcoming. That goes along with urban growth. We have to realize that in (growing cities) we have a number of different cultures. We have to make sure we grow as a community by bringing all those communities together, and we need a focal person to bring them together.”