Recognition of same-sex unions in Wisconsin

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Legal recognition of
same-sex relationships
Marriage
Recognized
  1. Can be registered also in Aruba, Curaçao and Sint Maarten
  2. When performed in Mexican states that have legalized same-sex marriage

Commencement dates:
  1. To be determined
  2. June 1, 2014 for statewide
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Domestic partnerships that afford limited rights to same-sex couples have been recognized in Wisconsin since August 3, 2009. Same-sex marriage and "a legal status identical or substantially similar to that of marriage for unmarried individuals" is banned by a constitutional amendment adopted by popular vote in 2006. A statute that antedated that constitutional amendment provides that residents who contract a marriage in another jurisdiction that would be prohibited within Wisconsin can be fined up to $10,000 and/or imprisoned for up to 9 months.[1][2]

The domestic partnership plan was passed as part of the biennial state budget bill that was approved by both houses of the legislature and signed by Governor Jim Doyle on June 29, 2009. Domestic partnerships in Wisconsin provide select rights, such as 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. Wisconsin's domestic partnership registry does not provide two-parent adoptions by persons of the same sex, and confers far fewer rights, duties and protections than are associated with marriage.

Wisconsin was the first state in the Midwest to enact any form of recognition for same-sex unions. Of the several states that have bans on same-sex marriage and civil unions, Wisconsin was the first and only one to enact limited domestic partnerships.[3]

Same-sex marriage ban[edit]

Legislation banning same-sex marriage was introduced in the Wisconsin State Assembly on August 17, 2003.[4] and passed by a vote of 68–29 on October 23.[5] The Wisconsin State Senate passed the legislation by a vote of 22–10 on November 5.[6] Governor Jim Doyle vetoed it on November 10, 2003.[7] The Assembly failed to override the Governor's veto by one vote, 63–33, on November 12.[8]

On March 5, 2004, the Assembly approved a state constitutional amendment by a vote of 68–27, that read:[9]

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.

The Senate approved the same language by a 20–13 vote on March 12, completing the first of two legislative approvals required to place the amendment on the ballot.[10] The Senate approved the proposed amendment again on December 6, 2005, voting 19–14 along party lines.[11] The Assembly did the same on February 28, 2006, by a vote of 62-31. The question appeared as a referendum on the statewide ballot on November 7, 2006,[12][13] and voters passed the amendment by a margin of 59.4% to 40.6%.[14]

Lawsuits[edit]

McConkey v. Van Hollen[edit]

William McConkey, a political science instructor filed a lawsuit, McConkey v. Van Hollen, on April 9, 2009, in Wisconsin Supreme Court charging that Wisconsin Referendum 1 (2006), which banned both same-sex marriage and civil unions in the state, violated the state's constitution because it proposed more than one question in a single ballot proposal, which is illegal under Wisconsin law.[15] On May 14, the Court agreed to hear the case, specifying two questions, whether McConkey, as an individual voter, has standing to sue and whether the ballot initiative presented two questions. Wisconsin Attorney General J. B. Van Hollen challenged McConkey's standing.[16][17] The Court heard oral arguments on November 3.[18][19] On June 30, 2010, the Wisconsin Supreme Court ruled 7–0 in McConkey that the ballot measure was proper.[20]

Wolf v. Walker[edit]

On February 3, 2014, the American Civil Liberties Union (ACLU) and the law firm of Mayer Brown filed a lawsuit in U.S. District Court for the Western District of Wisconsin on behalf of four same-sex couples, including a lesbian couple married in Minnesota in 2013. It challenged the state constitution's ban on same-sex marriage as well as Wisconsin's marriage evasion law, which makes it a crime to leave the state to establish a marriage that is not valid in Wisconsin punishable with up to nine months in jail and a fine of as much as $10,000. The suit named Governor Scott Walker, several state officials, and two county clerks as defendants.[21][22]

The case was assigned to Judge Barbara Brandriff Crabb, who scheduled a hearing for March 27.[23] Both county clerks support the plaintiffs position. District attorneys in Milwaukee and Eau Claire counties agreed not to prosecute the plaintiffs under the marriage evasion law. Prompted by Judge Crabb, who noted that several rulings against state bans of same-sex marriage in other jurisdictions had been stayed, on March 12 the plaintiffs withdrew their request for injunctions against the state's enforcement of both its ban on same-sex marriage and the marriage evasion law, and asked the court to set an expedited schedule.[24]

Domestic partner registry[edit]

Wisconsin Governor Jim Doyle proposed legislation for same-sex partnerships in Wisconsin on February 17, 2009.[25] On June 13, the Assembly passed, by vote of 50–48, a state budget that incorporated domestic partnerships for same-sex couples.[26][27] The Senate passed the budget on June 17 by vote of 17–16.[28][29] Doyle signed the budget legislation on June 29.[30] The Domestic Partnership law took effect on August 3.[31]

Enumerated rights[edit]

A domestic partnership can be registered at the county level, with couples having to sign a legal declaration of their commitment. To be eligible for a domestic partnership, two individuals must both be at least 18 years old, share a common residence, not be nearer of kin than second cousins, and neither party can be married or in another domestic partnership with anyone else.[32]

Wisconsin's domestic partnership registry provides 43 rights and protections to same-sex couples, in contrast to more than 200 state-level rights and over 1,138 federal-level protections afforded to heterosexual couples. These rights include:

  • Administration and transfer of deceased partner's estate
    • Ability to inherit partner's estate in the absence of a will
    • Priority with respect to certain personal property
    • Can be awarded the couple’s home and vehicles that are titled in the name of the deceased partner, as well as personal and household items of the deceased partner, by a probate court
    • Exempting certain property transferred to the surviving partner from creditors' claims
    • Family support during administration of a deceased individual's estate
    • Transfer of real estate titles without paying fee
    • Transfer of motor vehicle titles
  • Other rights
    • Presumption of joint tenancy in real estate
    • Rights related to power of attorney for property and finances
    • Family leave for sick or dying partner
    • Hospital visitation
    • Ability to admit incapacitated partner to nursing facility
    • Ability to access deceased or incapacitated partner's medical records
    • Ability to file suit for wrongful death
    • Right to receive death benefits if the deceased partner was killed in a workplace accident
    • Crime victim compensation
    • Immunity from testifying against partner
    • Ability to consent to autopsy for deceased partner
    • Ability to make anatomical donation in the event of partner's death

Lawsuit[edit]

On July 23, 2009, before the Domestic Partnership Law took effect, three members of Wisconsin Family Action (WFA) filed a petition for an original action in the Wisconsin Supreme Court, Appling v. Doyle, seeking a declaration that the domestic partner registry is unconstitutional under the state's Marriage Protection Amendment.[33] WFA had been the primary advocate for that constitutional amendment. WFA said that the state's domestic partner registry creates a "legal status" substantially similar to marriage, while voters intended to preserve a "conjugal model" of marriage. WFA agreed that Wisconsin's domestic partner registry provides far fewer rights, duties, and protections than marriage, but contended that by granting "legal status" to same-sex couples the registry legislation violated the "intention of the voters".[34]

When the Court declined to take the case, WFA filed its suit in Dane County District Court in 2010. The state hired outside counsel the defend the registry law, but on May 13, 2011, Governor Scott Walker asked to withdraw the state's defense of the domestic partnership registry.[35] Fair Wisconsin, an LGBT advocacy organization, intervened to defend the registry, assisted by Lambda Legal.[36]

On June 20, 2011, Dane County Judge Dan Moeser ruled that the domestic partnership registry does not violate the state constitution, finding that the state "does not recognize domestic partnership in a way that even remotely resembles how the state recognizes marriage".[37] On December 20, 2012, a three-judge panel of the Fourth District Court of Appeals unanimously upheld Wisconsin's domestic partner registry, affirming Moeser's ruling.[36]

Public opinion[edit]

Same-Sex Marriage in Wisconsin
Polling Firm Month Link Favor Oppose
Public Policy Polling May 2011 [38] 42 46
Public Policy Polling August 2011 [39] 39 50
Public Policy Polling July 2012 [40] 43 47
Public Policy Polling February 2013 [41] 44 46
Marquette University October 2013 [42] 53 47

An October 2012 poll by Marquette University found that 44% support same-sex marriage, 28% favoring civil unions and 23% saying there should be no legal recognition for same-sex unions.[43]

A February 2013 Public Policy Polling survey also found that 71% of respondents supported legal recognition of same-sex couples, with 39% supporting same-sex marriage, 32% supporting civil unions, 27% opposing all legal recognition, and 2% not sure.[41]

An October 2013 poll by Marquette University found that 53% support same-sex marriage, 24% favoring civil unions and 19% saying there should be no legal recognition for same-sex unions.[43][44]

See also[edit]

References[edit]

  1. ^ Wisconsin Statutes 765.30(1)(a)
  2. ^ Spotts, Maia (September 1, 2010). "The Criminalization of Gay Marriage". Gay Rights. Change.org. Retrieved October 16, 2010. 
  3. ^ Forster, Stacey (July 1, 2009). "Wisconsin to recognize domestic partnerships". Journal Sentinel. Retrieved December 21, 2012. 
  4. ^ [1] The Proposed Legistation
  5. ^ [2] The Passed House
  6. ^ [3] The Passed Senate
  7. ^ [4] Vetoed
  8. ^ [5] Override Attempt
  9. ^ Assembly Joint Resolution 66, Journal of the Wisconsin Assembly, March 5, 2004, p. 798.
  10. ^ Assembly Joint Resolution 66, Journal of the Wisconsin Senate, March 11, 2004, p. 717. The final vote was taken shortly after midnight on March 12.
  11. ^ Senate Joint Resolution 53, Journal of the Wisconsin Senate, Dec. 6, 2005, p. 488.
  12. ^ Senate Joint Resolution 53, Journal of the Wisconsin Assembly, Feb. 28, 2006, p. 862
  13. ^ "2005 Senate Joint Resolution 53". Docs.legis.wisconsin.gov. Retrieved December 2, 2013. 
  14. ^ Canvass Summary, Wisconsin State Elections Board, Fall General Election, November 7, 2006.
  15. ^ "Wisconsin amendment supreme court". Wkbt.com. November 14, 2013. Retrieved December 2, 2013. 
  16. ^ "State to reevaluate gay marriage ban". Badger Herald. May 14, 2009. Retrieved February 3, 2014. 
  17. ^ "Supreme Court accepts four new cases", Headlines Archive, Wisconsin Court System, May 21, 2009.
  18. ^ Magnum, Christopher (November 3, 2009). "Wis. Supreme Court Hears Gay Marriage Case". The Advocate. Retrieved February 3, 2014. 
  19. ^ Marley, Patrick (November 3, 2009). "State Supreme Court hears arguments on gay marriage amendment". Milwaukee Journal Sentinel. Retrieved February 3, 2014. 
  20. ^ Foley, Ryan J. (June 30, 2010). "Wisconsin Supreme Court unanimously upholds gay marriage ban". Wisconsin State Journal. Retrieved March 12, 2014. 
  21. ^ Geidner, Chris (February 3, 2014). "ACLU Filing Lawsuit In Wisconsin Seeking Marriage Equality". Buzz Feed. Retrieved March 12, 2014. 
  22. ^ Johnson, Chris (February 3, 2014). "Wisconsin latest state to face marriage lawsuit". Washington Blade. Retrieved February 3, 2014. 
  23. ^ "Federal judge to hear motion March 27 in Wisconsin marriage equality case". Wisconsin Gazette. February 28, 2014. Retrieved March 12, 2014. 
  24. ^ Hall, Dee J. (March 12, 2014). "Request for injunction in gay-marriage suit withdrawn". Wisconsin State Journal. Retrieved March 12, 2014. 
  25. ^ 2009 Assembly Bill 75, passim.
  26. ^ Assembly Bill 75, Journal of the Wisconsin Assembly, June 11, 2009, p. 263–264. The vote was taken after midnight on June 13.
  27. ^ "All-Nighter: Assembly Passes Budget". Retrieved December 2, 2013. [dead link]
  28. ^ Assembly Bill 75, Wisconsin Senate Journal, June 17, 2009, p. 218.
  29. ^ [6][dead link]
  30. ^ Pitsch, Mark (June 29, 2009). "Doyle signs budget, vetoes binding referendum on RTA tax". The Wisconsin State Journal. Retrieved June 30, 2009. [dead link]
  31. ^ "Domestic Partnership". Budget Brief 09-2. Wisconsin Legislature. Retrieved February 3, 2014. 
  32. ^ 2009 Wisconsin Act 28, s. 775, p. 186.
  33. ^ "Pro-Family Group Defends the People, the Constitution and Marriage" (press release), Wisconsin Family Action, July 23, 2009.
  34. ^ "Decision and Order". Dane County Circuit Court. June 20, 2011. Retrieved February 3, 2014. 
  35. ^ "Gov. Walker Wants to Stop Defending Domestic Partnership Registry in Court". WSAW/Associated Press. May 16, 2011. Retrieved June 27, 2013. 
  36. ^ a b Marley, Patrick (December 21, 2012). "Wisconsin appeals court upholds domestic partner registry". Journal Sentinel. Retrieved December 23, 2012. 
  37. ^ "Judge rules Wisconsin same sex registry is constitutional". Reuters. June 20, 2011. Retrieved December 21, 2012. 
  38. ^ "Wisconsin Survey Results". May 19–22, 2011. Retrieved December 2, 2013. 
  39. ^ "WI bullish on Packers, hate Favre, want Dem-controlled Sen." (PDF). Retrieved December 2, 2013. 
  40. ^ "Wisconsin narrowly opposes gay marriage" (PDF). Retrieved December 2, 2013. 
  41. ^ a b "Clinton would beat Walker, Ryan in Wisconsin in 2016" (PDF). Retrieved December 2, 2013. 
  42. ^ "Marquette Law School Poll shows Walker in tight race with Burke for Wisconsin governor in 2014". Law.marquette.edu. October 29, 2013. Retrieved December 2, 2013. 
  43. ^ a b "Majority Of Wisconsin Voters Now Support Same-Sex Marriage". Wisconsin Public Radio. October 29, 2013. 
  44. ^ "Marquette Law School Poll shows Walker in tight race with Burke for Wisconsin governor in 2014". Marquette University. October 29, 2013. 

External links[edit]