Appling v. Doyle

I got an e-note from Fair Wisconsin this evening telling me that the Dane County Circuit Court’s decision in the Appling v. Doyle litigation was favorable. The court declared Wisconsin’s Domestic Partnership law constitutional, as expected.

Dane County Circuit Judge Daniel Moeser ruled that the law does not create a legal status for partners that is identical or substantially similar to that of marriage and therefore it does not violate the anti-marriage amendment to Wisconsin’s constitution: “The state does not recognize domestic partnership in a way that even remotely resembles how the state recognizes marriage. Moreover, domestic partners’ have far fewer legal rights, duties, and liabilities in comparison to the legal rights, duties, and liabilities of spouses.”

The decision, although expected, was welcome, because it contains a careful analysis on the Domestic Partnership law, the constitutional and legislative history behind the law, and the legislative and political history of the anti-marriage amendment.

The history reveals, in black and white, the rank hypocrisy of Julaine Appling and Wisconsin Family Action, who argued in 2006 that the anti-marriage amendment would not prohibit the state or local governments from granting limited protections to same-sex couples, so long as the protections did not create “marriage in all but name”, and then changed their tune before the ink was dry on the amendment.

But what I found most fascinating, was a discussion, toward the end of the opinion (at pages 51-52), of the legal sleight-of-hand practiced by Julaine & Company and their legal counsel:

Plaintiffs admit that not all of the legal incidents of marriage are conferred on domestic partnerships. (Pls.’ Supp. Br. 12). However, they contend that that is not the relevant question because a “relationship that is identical to or substantially similar to marriage need not contain all or almost all of marriage’s legal incidents.” (Id. at 43). Instead, Plaintiffs argue that Chapter 770 violates the Marriage Amendment because it is calculated to confer the same social status of marriage. (Id. at 44-45). They argue that a “substantially similar” status “is one that can be seen as a form of marriage for same-sex couples, i.e., for two person in an intimate relationship in some sense mirroring that between a married man and woman.” (Id. at 12.). Plaintiffs allege that it is the “existence of an exclusive, intimate relationship – clearly implicit in Chapter 770 – that creates the substantially similar status prohibited by the Amendment.” (Id.).

Furthermore, Plaintiffs urge this court to ignore the evidence of the plain language, constitutional debates, and earliest interpretations by the legislature and instead adopt their explanation of the “general purpose” of the Marriage Amendment. According to Plaintiffs, Wisconsin voters ratified the Marriage Amendment to further the general purpose of promoting a conjugal model of marriage. (Pls. Support Br. 31-35). Plaintiffs’ conjugal model views the central purpose of marriage as providing a means by which society can channel sexual desires between men and women into a legal institution that reflects the belief that children do best when reared by their biological mother and biological father. (Id. at 31-32).

Plaintiffs’ arguments are unavailing for two reasons. First, as this court has repeatedly stated, the Marriage Amendment prohibits a legal status that is identical or substantially similar to the legal status of married individuals. (Emphasis added.). As stated above the legal status of domestic partners is substantially different than that of married spouses.

Second, even if the court ignored the fact that there is no evidence that voters ratified the Marriage Amendment with the intent to further a conjugal model of marriage, Plaintiffs’ argument is still unpersuasive. Assuming, arguendo, the purpose of marriage is to accommodate the potentially procreative nature of heterosexual relationships, then it is undisputed that domestic partnerships do not have the same purpose because there is no potential for a homosexual relationship to be procreative. Therefore, Plaintiffs’ argument about the purpose of marriage supports the conclusion that domestic partnerships are not substantially similar to marriage.

In a nutshell, the legal case brought by Julaine & Company against the Domestic Partnership law requires a court to ignore both “the plain language, constitutional debates, and earliest interpretations by the legislatureand the internal logic of Julaine & Company’s legal reasoning concerning the nature of marriage. In this sense, Appling v. Doyle is Perry v. Schwarzenegger redux, demonstrating the utter bankruptcy of the legal arguments against “equal means equal” more clearly than anything I could write.

Julaine & Company vowed to appeal the decision, also as expected, and the question will be resolved by the Wisconsin Supreme Court in a few years, assuming that Governor Walker and the Republicans don’t get around to repealing the law before then, as they have pledged to do. You can bet that Julaine & Company are putting the pressure on.

It would be laughable if it weren’t reality.

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