WI Sup. Ct. upholds same-sex marriage ban

The Wisconsin State Supreme Court released a decision regarding the legality of the same-sex marriage ban that passed in the state in 2006. In a 7-0 judgment, the Court upheld the ban, denying a legal challenge based on how the amendment had been passed.

William McConkey, who brought the suit forward following its passage into law, alleged that the amendment itself was unconstitutional, presented to the electorate under terms that violated rules for passing amendments.

Under Wisconsin's State Constitution, a proposed amendment must first pass in two consecutive sessions of the state legislature. Following that, the measure is put to the people, who vote "yes" or "no" on the proposal. If there is more than one amendment being asked, the ballot must separate each to allow the people the right to decide each individually.

The same-sex marriage ban that passed in 2006 included two separate questions, but only offered voters to vote "yes" on both or "no" on both.

The original text of the ballot read:

"Shall section 13 of article XIII of the constitution be created to provide that only a marriage between one man and one woman shall be valid or recognized as a marriage in this state and that a legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state?"

Two questions were clearly asked there: first, should marriage be defined as between one man and one woman only; and second, should we refuse to recognize any other status to those who don't fit those criteria that would want benefits similar to marriage?

The Court earlier this week ruled that, even if those two questions were asked, "both sentences of the marriage amendment relate to marriage and tend to effect or carry out the same general purpose of preserving the legal status of marriage in Wisconsin as between only one man and one woman."

But that ruling, from the opinion written by Justice Michael Gableman, is an inaccurate assessment. Previous rulings by the Wisconsin State Supreme Court have ruled that amendments with multiple clauses need to relate with one another. And while both questions had to do with denying benefits to same-sex partners, one was denying the specific title of marriage while the other would deny any other title that could possibly be offered (like civil unions, for example).

It's not enough to say that the two questions are related and therefore required no separation on the ballot -- the entire point was that they carried two separate distinctions. A person who supports same-sex unions but not necessarily under the title of "marriage" was never given the choice to express that view. They either had to support same-sex marriage or side with those who didn't want ANY benefits granted to same-sex couples.

So while the letter of the law was carried out -- it technically WAS part of one amendment -- the spirit was clearly ignored. Two questions on a single ballot constituted two separate outcomes. The people were never given the choice to decide on them separately.