Recognition of same-sex unions in Wisconsin

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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 the State Assembly in a 50–48 vote on June 13, 2009,[3] and by the Senate in a 17–16 vote on June 17, 2009.[3] Gov. Jim Doyle signed the legislation on June 29. 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. 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 be of the same sex, 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.[4]

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.[5]

Contents

Lawsuit [edit]

Wisconsin Family Action (WFA), the primary advocate for Wisconsin's 2006 constitutional amendment banning same-sex marriage and civil unions, challenged the state's domestic partner registry and claimed it creates a "legal status" substantially similar to marriage, saying that voters intended to preserve a "conjugal model" of marriage or a social scheme solely intended to facilitate the sexual nature of a heterosexual relationship. According to WFA, domestic partnerships violate this "intention of the voters". WFA agreed that Wisconsin's domestic partner registry provides far fewer rights, duties, and protections than marriage, but contended that the main issue was the granting of "legal status" to same-sex couples.[6]

On July 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". He characterized Chapter 770 as a legal construct to provide enumerated rights to committed same-sex couples.[7] A state appeals court confirmed that ruling in a unanimous decision on December 21, 2012.[8]

Enumerated rights [edit]

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 limited 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

History [edit]

 This article is in a list format that may be better presented using prose. You can help by converting this article to prose, if appropriate. Editing help is available. (August 2010)

August 17, 2003: Wisconsin State Assembly introduces a statute that would have banned same-sex marriage.[9]

October 23, 2003: AB475 passes by a vote of 68–29 and is send to the Wisconsin State Senate.[10]

November 5, 2003: Wisconsin State Senate passes AB475 by a vote of 22–10.[11]

November 10, 2003: Governor Jim Doyle vetoes proposed legisation.[12]

November 12, 2003: The Assembly attempts to override the Governor's Veto which failed by one vote, 63–33.[13]

March 5, 2004: The Wisconsin State Assembly approves, by a vote of 68–27, a state constitutional amendment reading:[14]

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.

March 12, 2004: The Wisconsin State Senate votes 20–13 to pass that state's amendment, which must still be passed again in next year's legislature, and be voted on in a state-wide referendum.[15]

December 6, 2005: The Wisconsin State Senate votes a second time in favor of the amendment. The vote is 19–14 and is along party lines.[16]

February 28, 2006: The Wisconsin State Assembly votes for the second time in favor of the amendment. The question appeared on ballots statewide on November 7, 2006.[17]

November 7, 2006: Wisconsin voters passes the amendment by a margin of 59.4%–40.6%.[18]

February 17, 2009: Wisconsin governor Jim Doyle proposes legislation for same-sex partnerships in Wisconsin.[19]

April 9, 2009: The Wisconsin Supreme Court is asked in McConkey v. Van Hollen to rule on whether or not Wisconsin Referendum 1 (2006), which banned both same-sex marriage and civil unions in the state, is constitutional. William McConkey, a political science instructor, has claimed that the measure violated the state's constitution because it proposed more than one question in a single ballot proposal, which is illegal under Wisconsin law.[20]

May 14, 2009: The Wisconsin Supreme Court agrees to hear McConkey's appeal and gave the parties 30 days to file briefs. The court will decide two questions. First it must decide if McConkey, as an individual voter, has standing to sue. Wisconsin Attorney General J. B. Van Hollen has claimed that he does not. If it finds he does have standing, it will then rule whether the ballot measure did illegally present two questions.[21] In certifying the case, the Supreme Court said it acquired jurisdiction of “the entire appeal, which includes all issues, not merely the issues certified or the issue for which the court accepts the certification.”[22]

June 13, 2009: Wisconsin Assembly passed budget, by vote of 50–48, which includes domestic partnerships for same-sex couples.[23][24]

June 17, 2009: Wisconsin Senate passes a budget, by vote of 17–16, that establishes a domestic partnership registry for same-sex couples.[25][26]

June 29, 2009: Governor Jim Doyle signed the budget.[27]

July 23, 2009: Three members of Wisconsin Family Action 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.[28]

August 3, 2009: Domestic Partnership law goes into effect.[3]

November 3, 2009: Oral arguments are heard in McConkey v. Van Hollen.[29][30]

November 4, 2009: The Wisconsin Supreme Court decides Appling v. Doyle, rejecting Wisconsin Family Action's legal challenge to domestic partnerships.[3]

June 30, 2010: The Wisconsin Supreme Court rules 7–0 in McConkey that the ballot measure for Wisconsin's marriage amendment was proper.[31]

May 13, 2011: Governor Scott Walker asked to withdraw the state's defense of the domestic partnership registry.[32]

June 20, 2011: Dane County Judge Dan Moeser rules 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".[33]

January 1, 2012: Wisconsin Family Action submits all briefs to the Court of Appeals.[34]

May 3, 2012: District 2 Court of Appeals Judge Mark Gundrum, the coauthor of Wisconsin's 2006 amendment banning both same-sex marriages and civil unions, was recused from hearing the case.[35]

July 5, 2012: District 4 Court of Appeals asks the Supreme Court to take up the matter due to "a state-wide significance".[36]

September 17, 2012: The Wisconsin Supreme Court rejects WFA's lawsuit challenging domestic partnerships.[37]

December 20, 2012: A three-judge panel of the District 4 Court of Appeals unanimously upholds Wisconsin's domestic partner registry, affirming a lower court's ruling.[38]

Public opinion [edit]

Same-Sex Marriage in Wisconsin
Polling Firm Month Link Favor Oppose
Public Policy Polling May 2011 [39] 42 46
Public Policy Polling August 2011 [40] 39 50
Public Policy Polling July 2012 [41] 43 47
Public Policy Polling February 2013 [42] 51 49

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.[42]

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. ^ a b c d State Assembly Votes to Approve Domestic Partnerships!, Fair Wisconsin
  4. ^ 2009 Wisconsin Act 28, s. 775, p. 186.
  5. ^ Forster, Stacey (July 1, 2009). "Wisconsin to recognize domestic partnerships". Journal Sentinel. Retrieved December 21, 2012. 
  6. ^ [1]
  7. ^ "Judge rules Wisconsin same sex registry is constitutional". Reuters. June 20, 2011. Retrieved December 21, 2012. 
  8. ^ "Wisconsin court upholds domestic partner registry". USA Today. December 21, 2012. Retrieved December 21, 2012. 
  9. ^ [2] The Proposed Legistation
  10. ^ [3] The Passed House
  11. ^ [4] The Passed Senate
  12. ^ [5] Vetoed
  13. ^ [6] Override Attempt
  14. ^ Assembly Joint Resolution 66, Journal of the Wisconsin Assembly, March 5, 2004, p. 798.
  15. ^ 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.
  16. ^ Senate Joint Resolution 53, Journal of the Wisconsin Senate, Dec. 6, 2005, p. 488.
  17. ^ Senate Joint Resolution 53, Journal of the Wisconsin Assembly, Feb. 28, 2006, p. 862
  18. ^ Canvass Summary, Wisconsin State Elections Board, Fall General Election, Nov 7, 2006.
  19. ^ 2009 Assembly Bill 75, passim.
  20. ^ Wisconsin amendment supreme court
  21. ^ Foley, Ryan J. (May 14, 2009). "Wis. high court to review 2006 gay marriage ban". The Washington Post (Associated Press). Retrieved May 15, 2009. [dead link]
  22. ^ "Supreme Court accepts four new cases", Headlines Archive, Wisconsin Court System, May 21, 2009.
  23. ^ Assembly Bill 75, Journal of the Wisconsin Assembly, June 11, 2009, p. 263–264. The vote was taken after midnight on June 13.
  24. ^ All-Nighter: Assembly Passes Budget
  25. ^ Assembly Bill 75, Wisconsin Senate Journal, June 17, 2009, p. 218.
  26. ^ http://www.lacrossetribune.com/articles/2009/06/18/newsupdate/11budget.txt
  27. ^ Pitsch, Mark (June 29, 2009). "Doyle signs budget, vetoes binding referendum on RTA tax". The Wisconsin State Journal. Retrieved June 30, 2009. [dead link]
  28. ^ "Pro-Family Group Defends the People, the Constitution and Marriage" (press release), Wisconsin Family Action, July 23, 2009.
  29. ^ Christopher Magnum, Wis. Supreme Court Hears Gay Marriage Case, Advocate.com, Nov 3, 2009.
  30. ^ Patrick Marley, State Supreme Court hears arguments on gay marriage amendment, The Milwaukee Journal Sentinel, Nov 3, 2009.
  31. ^ High Court Upholds State Amendment Banning Same Sex Marriage
  32. ^ The Washington Post http://www.washingtonpost.com/national/wis-gov-walker-tells-judge-he-wants-to-stop-defending-domestic-partner-registry-law-in-court/2011/05/16/AFbsBD5G_story.html |url= missing title (help). [dead link]
  33. ^ Judge rules Wisconsin same sex registry is constitutional
  34. ^ Mark Gundrum won't hear Wisconsin's domestic partner lawsuit
  35. ^ Mark Gundrum won't hear Wisconsin's domestic partner lawsuit
  36. ^ Wisconsin Supreme Court asked to rule on domestic partner registry
  37. ^ Wis. Supreme Court declines domestic partnership law appeal
  38. ^ Marley, Patrick (December 21, 2012). "Wisconsin appeals court upholds domestic partner registry". Journal Sentinel. Retrieved December 23, 2012. 
  39. ^ Wisconsin Survey Results
  40. ^ WI bullish on Packers, hate Favre, want Dem-controlled Sen.
  41. ^ Wisconsin narrowly opposes gay marriage
  42. ^ a b Clinton would beat Walker, Ryan in Wisconsin in 2016

External links [edit]
Same-sex marriage legalized:
Laws not yet in effect
Same-sex marriage recognized,
but not performed:
Civil union or domestic partnership legal:
Same-sex marriage prohibited by statute:
Same-sex marriage prohibited
by constitutional amendment:
All types of same-sex unions prohibited
by constitutional amendment:
Recognition of same-sex unions undefined
by statute or constitutional amendment:
Notes

† California's laws on marriage are complicated: All out-of-state same-sex marriages are given the benefits of marriage under California law, although only those performed before November 5, 2008, are granted the designation "marriage". The constitutional ban on same-sex marriage remains in limbo following a federal case finding the ban unconstitutional, which is currently stayed pending a Supreme Court decision.

* 64 same-sex marriages were issued in 2004: one of these marriages was recognized as valid for the purposes of divorce in 2010. However this was a narrow ruling, and the recognition of the marriages is unknown elsewhere.
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