ACLU of WI Stands Up to WI Family Action's Legal Attack on Domestic Partnerships

On the morning of Thursday, July 23, the anti-gay organization called Wisconsin Family Action filed a complaint about the domestic partner provisions in the state budget. The complaint was sent to the state Supreme Court asking for an original action, a move to skip right to the top of challenging the law through the court system and demand an injunction to stop the registry and benefits from being recognized. (Legal geek? Read the full complaint here.)

We've written before about how the domestic partnership registry and benefits for state workers is nowhere close to marriage. While the registry and benefits will help to make daily life feel more fair for real Wisconsin families, the limits to protections can hardly be considered "substantially similar" to marriage the way that state-recognized civil unions might.

The ACLU of Wisconsin today issued a statement on why the Supreme Court should deny the Wisconsin Family Action and Alliance Defense Fund petition. These groups not only believe that the domestic partnership provisions violate the 2006 constitutional amendment banning gay marriage, they also say that it "redefines marriage" in a "sneaky assault."

The petitioners' reasons for seeking to skip the lower courts and go straight to the Wisconsin Supreme Court meet none of the tests required by the Court to take jurisdiction of this matter as an original action.

They think the facts are simple (i.e. domestic partnership registries and benefits are just like marriage and actually threaten heterosexual married couples). But they are actually asking the Supreme Court to have to decide whether the few protections that the legislature has provided to same-sex couples are ‘substantially similar’ to marriage. It will also have to decide whether the newly created status of domestic partner is ‘substantially similar’ to marriage. Both arguments require factual development which is what lower trial courts are for.

Wisconsin Family Action doesn’t just want to erase fairness for same-sex couples: they want to erase history. Three years ago, leading proponents of the anti-gay marriage amendment repeatedly admitted that domestic partnership benefits and protections are not the same as marriage. In February 2006, Wisconsin Family Action Executive Director Julaine Appling said in the Capital Times that “domestic partner benefits were not threatened” by the amendment. Earlier, in November of 2005, legislators received a memo from state Senator Scott Fitzgerald and Rep. Mark Gundrum saying that "no particular privileges or benefits would be prohibited" under the marriage ban. The memo put into writing that legal constructs by governments would be allowed: exactly what was signed into law by Governor Doyle this year.

Clearly this challenge will have an impact statewide, but it is not about maintaining existing marriages except in the minds of the petitioners. The domestic partnership registry and the benefits and protections associated with it, whether taken singly or as a whole, are nothing close to marriage. In fact, married Wisconsinites should ask themselves, would you trade your marriage and its hundreds of legal protections for the newly created domestic partnership? Of course not, because they aren’t the same.

The ACLU of Wisconsin anticipates that the State of Wisconsin will argue vigorously against acceptance of this petition and in defense of the domestic partnership registry. The ACLU of Wisconsin in April went on record offering to assist in any necessary defense of the domestic partnership registry.

The ACLU of Wisconsin is a membership organization devoted to the defense of the civil liberties and rights of all Wisconsin residents. Read the full statement from the ACLU of Wisconsin and from Fair Wisconsin.