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State constitution – construction of constitutional amendments

Appling v. Doyle, 2013 WI App 3, petition for review granted 6/12/13, sub. nom. Appling v. Walker; case activity

Wisconsin’s domestic partnership law upheld against challenge it violates 2006 “marriage amendment” to the state constitution (art. XIII, § 13), declaring that the only marriage recognized in Wisconsin is one “between one man and one woman” and prohibiting same-sex couples entering into a “legal status identical or substantially similar to that of marriage.”

¶2        In 2009, our legislature passed a domestic partnership law, Wis. Stat. ch. 770.  This law creates the “legal status” of “domestic partnership” that carries with it some of the same rights and obligations accorded marriage.

¶3        Julaine Appling and other plaintiffs … filed suit challenging the constitutionality of the domestic partnership law.  …  Appling contends that the domestic partnership law violates the marriage amendment because the partnership law creates a “legal status” that is “substantially similar to that of marriage.”  ….

¶4        Appling has the burden of showing that the domestic partnership law is unconstitutional beyond a reasonable doubt.  As explained further below, Appling must demonstrate, by reference to the language of the marriage amendment and other voter-intent evidence, that voters intended to prohibit the particular type of domestic partnership created by the legislature.  We conclude that Appling falls far short of meeting her burden….

This decision obviously has no direct bearing on SPD-related cases, but is worth noting for its discussion and application of the rules for construing a constitutional amendment ratified by voters–something that could come up in litigation under Wisconsin’s “right to bear arms” amendment (art. I, § 25) adopted in 1998. Briefly, the standard is this: Like statutory interpretation, constitutional construction begins with plain-text analysis; unlike statutory interpretation, the task does not end with the plain language, but always goes on to consider historical context surrounding passage (e.g., the debates about the amendment, including public statements by legislators and others knowledgeable about the amendment) and legislative interpretations of the provision, ¶¶11-15, citing Dairyland Greyhound Park, Inc. v. Doyle, 2006 WI 107, 295 Wis. 2d 1, 719 N.W.2d 408. In addition to substantial differences between marriage and a domestic partnership, debates on the amendment matters to the court, which concludes, ¶4, “there is little reason to think informed voters believed that the marriage amendment language would prohibit the domestic partnerships at issue here.”

Also, the court notes the case “is not about whether the Wisconsin or United States Constitutions require, on equal protection or other grounds, that same-sex couples have the right to a legally recognized relationship that is identical or substantially similar to marriage,” ¶5. If a standing issue doesn’t get in the way, that question could be decided this term by the U.S. Supreme Court, which granted certiorari review in the California Proposition 8 case, Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), cert. granted sub. nom. Hollingsworth v. Perry (12/07/2012). For more on that case, see its Scotusblog page.

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