By Paul Madden, Esq.
Wisconsin is an enigma. On the one hand, Wisconsin bans same sex marriage by a broadly worded constitutional amendment, providing:
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.
Art. 13, § 13. Neither will Wisconsin recognize same sex marriages from another state or country. W.S.A. § 765.04(1).
On the other hand, of all of the states that have bans on same-sex marriage and civil unions, Wisconsin appears to be the only one that then went on to enact legislation governing the relationship between domestic partners. W.S.A. § 770.05. Domestic partnerships in Wisconsin provide select rights and responsibilities both to state employees (not limited to same-sex couples) and to same-sex couples generally. The legislation addresses more than 40 rights and responsibilities, including the ability to inherit a partner’s estate in the absence of a will, hospital visitation, and the ability to access family medical leave to care for a sick partner. It does not provide for same-sex adoptions, the disposition of human remains or other unenumerated rights.
The tension between the constitutional amendment and the domestic partnership legislation is currently at issue in the Wisconsin courts. On July 5, 2012, the Wisconsin Court of Appeals certified an appeal to the Wisconsin Supreme Court “to determine whether Wisconsin’s domestic partnership legislation violates the Wisconsin Constitution’s marriage amendment.” Appling v. Doyle, No. 2011AP1572, 2012 WL 2579687 (Wis. Ct. App. July 5, 2012). The appeals court framed the specific question to be whether the legislation creates “a legal status substantially similar to that of marriage for unmarried individuals, as prohibited by the marriage amendment,” but decided not to refine the issue in its certification because the issue to be resolved in the Supreme Court is uncomplicated. The Governor of Wisconsin has refused to defend the domestic partnership legislation in the courts.