Wisconsin Supreme Court Rejects Single Subject Challenge to Marriage Amendment

The Wisconsin Supreme Court ruled unanimously yesterday that the state’s anti-marriage constitutional amendment, which bans both same-sex marriages and, arguably, civil unions or domestic partnerships that carry most of the state law rights of marriage, overwhelmingly adopted by voters in November 2006, does not violate the "single subject" rule. The opinion in McConkey v. Van Hollen, No. 2008AP1868, 2010 WI 57 (June 30, 2010), rejects a challenge that was filed in July 2007 by William McConkey, a voter who argued that he should not have been required to vote on both prohibitions in the same measure.

The court’s opinion, written by Justice Michael J. Gableman, affirms a ruling by Dane County Circuit Judge Richard G. Niess, finding that "both sentences of the marriage amendment relate to marriage and tend to effect or carry out the same general purpose of preserving the legal status of marriage in Wisconsin as between only one man and one woman."

Frustratingly, the opinion dances around the real issue in the case without ever honestly taking it on, which is that opinion polls show that many voters who oppose same-sex marriage are willing to support civil unions for couples who are not allowed to marry. Thus, coupling the two issues in one vote basically forces those voters who want to "protect marriage," whatever that means, to ban civil unions at the same time, even though they might be willing to allow the state to provide such a legal status for its unmarried couples. Perhaps the only saving grace of the opinion is that it doesn’t specifically hold that the amendment outlaws civil unions, finding it unnecessary to address that question in this case.

The amendment that was placed on the ballot in 2006 consisted of two sentences: "Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state." On its face, this presents the voters with two distinct questions: (1) should same-sex couples be allowed to marry? (2) should the state government be forbidden to create some legal status to make state law rights of marriage available to those who are not permitted to marry?

The legal challenge that McConkey originally filed argued that the amendment, as adopted, violated the federal and state constitutions’ due process and equal protection clauses, as well as the requirement under the state constitution "that if more than one amendment be submitted, they shall be submitted in such manner that the people may vote for or against such amendments separately." Judge Niess dismissed the constitutional claims, agreeing with the state that McConkey did not have standing as a plaintiff to challenge the amendment on substantive constitutional grounds, because as a heterosexually married man he had no individual stake in the matter. (By contrast, plaintiffs in the pending federal court challenge to California Proposition 8, Perry v. Schwarzenegger, have standing to raise the constitutional issues because they are two same-sex couples who desire to marry but are prevented from doing so by Prop 8.)

Niess found, however, that McConkey had standing as a voter to raise the question whether his rights were violated by having to vote on both provisions of the marriage amendment in tandem. As to that, Judge Niess, and the Supreme Court in agreement with him, found that "both propositions related to the subject matter of marriage and were designed to accomplish the same purpose: ‘the preservation and protection of the unique and historical status of traditional marriage.’"

Many states have adopted the single-subject requirement, but attempts to challenge some of the wide-ranging anti-marriage amendments that have been on state ballots over the past decade based on this requirement have been notably unsuccessful in state courts. The result turns, as is frequently the case, on how one characterizes the question. In this case, close scrutiny of the process by which this amendment was placed before the voters should have raised serious concerns by the court about deception and mislabeling, since the ballot title for this amendment focused entirely on limiting marriage to one man and one woman, and did not mention the ancillary purpose of forbidding any alternative legal status for unmarried couples. Furthermore, the campaign waged for its passage focused on preventing same-sex marriage, and largely ignored the second sentence. It was likely that only those voters who made the effort to acquaint themselves fully with the issue would be aware that they were voting to ban any legal status for same-sex couples, not just banning same-sex marriage, by voting yes.

Where the court gets hung up in this case is in its focus on "the purpose" of the amendment, while ignoring its effect. That is, the court says that the rule it has developed in its single-subject jurisprudence is to allow the linking of several propositions in a single amendment if they relate to the same subject and have a common purpose. Otherwise, it insists, it would be "absurd" to require voters to separately approve every individual aspect of an amendment that is intended to accomplish a particular purpose.

For example, at one time Wisconsin voters were presented with a proposal to substantially change the way the legislature was structured by changing the lengths of terms and various other details. In order to accomplish this, many individual changes had to be made, not least because the state has a bicameral legislature with different terms for the different houses. In a challenge to that amendment, the court had said that it made sense to present the entire package to voters, and not have them separately voting on each provision.

Thus, the standard the court embraces is that "the legislature may submit multiple propositions within one proposed amendment so long as those propositions tend to effect and carry out one general purpose and are connected with one subject."

"A plain reading of the text of the amendment, in which both propositions expressly refer to ‘marriage,’ makes clear that the general subject matter of the amendment is marriage," wrote Justice Grableman. "Before the marriage amendment was adopted, marriage in Wisconsin was already limited by statute to the unions of one man and one woman. This amendment was therefore an effort to preserve and constitutionalize the status quo, not to alter the existing character or legal status of marriage. The first sentence preserves the one man-one woman character of marriage by so limiting marriage entered into or recognized in Wisconsin. The second sentence, by its plain terms, ensures that no legislature, court, or any other government entity can get around the first sentence by creating or recognizing ‘a legal status identical or substantially similar to that of marriage.’ We need not decide what legal statuses identical or substantially similar to marriage are prohibited by this clause in order to understand its plan and general purpose."

The court asserted that the motivation for this amendment, which was first introduced in the legislature in 2004, was to prevent Wisconsin from following the path that had been trod up to that point by Vermont, where the state’s supreme court had required the legislature to provide a legal status with the rights of marriage to same-sex couples, resulting in the nation’s first civil union law, and Massachusetts, where the state’s supreme court had recently required the state to allow same-sex couples to marry. This purpose is reflected in the memo that sponsors of the amendment sent to state legislators in January 2004.

Referring to this memo, the court said that the sponsors of the amendment "wanted to protect the current definition and legal status of marriage, and to ensure that the requirements in the first sentence could not be rendered illusory by later legislative or court action recognizing or creating identical or substantially similar legal statuses. The purpose of the marriage amendment, then, was to preserve the legal status of marriage in Wisconsin as between only one man and one woman. Both propositions in the amendment tend to effect or carry out this general purpose."

The court never mentions the polling data showing that voters have differing views about the desirability or permissibility of same-sex marriage as against civil unions, and never really confronts directly the argument that by coupling the propositions in one ballot question, the legislature forced voters to make two policy decisions in one vote. To this court, the two are such closely related questions that there is no problem in requiring voters to approve or reject them as a package, although the court ignores their differential impact, because the overall purpose of the amendment, as identified by the court, is to preserve the "unique" status of traditional heterosexual marraige. A ballot title more accurately describing the amendment in terms of its effect might have been devised to signal to voters that it would deny any legal status carrying marital rights and responsibilities to same-sex couples, in order to reserve all those rights and responsibilities exclusively for traditionally-married heterosexual couples.

By not opining on whether a civil union law would violate the amendment, the court seems to leave that possibility open, depending on whether a legal status that would carry no legal rights under federal law would be adjudged sufficiently dissimilar to marriage to pass muster. In this connection, it is worth noting that several supreme courts of other states have recently discerned sufficient differences between marriage and either civil unions or domestic partnerships to make them different and unequal institutions for purposes of state equal protection analysis.

McConkey is represented in the lawsuit by Lester A. Pines, Tamara B. Packard, and Edward S. Marion. Attorney General J.B. Van Hollen, the named defendant, was represented by Assistant Attorney General Lewis W. Beilin.

Although this was a private voter lawsuit rather than an action instigated by LGBT public interest groups, the case attracted organization amicus briefs on both sides of the issue. ACLU and Lambda Legal and the League of Women Voters supported McConkey’s appeal, while the Wisconsin Family Council (represented by Alliance Defense Fund), and an organization calling itself "Community Leaders Dedicated to Children Raised by Married Mothers and Fathers," filed briefs defending the amendment.