Is the Domestic Partnership Registry unconstitutional?

Answer will depend upon what rights define a "substantially similar" relationship to "marriage"

An appeals court is requesting that the Wisconsin Supreme Court step in to determine the legality of Domestic Partnerships within the state.

At issue is whether the Domestic Partnership Registry conflicts with a Constitutional amendment that was passed in 2006 denying same-sex couples rights of marriage.

The amendment reads:

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 Domestic Partnership Registry grants couples, both same- and opposite-sex (should the latter choose to enter a Domestic Partnership rather than a marriage), rights that are traditionally associated with marriage, but which may also be given to individuals outside of a committed relationship as well.

For instance, visitation rights may be conferred to anyone regardless of the relationship status. Inheritance rights can also be given to any two people without having to be romantically involved, as can end-of-life decisions. Many people have "power of attorney" rights with non-family members whom they have no "loving" affiliation with.

Domestic Partnerships, however, allow couples that don't or can't get married to have these legal protections afforded to them in a simple, one-step way.

Yet right-wing groups, like Wisconsin Family Action, contend that the law violates the second clause of the 2006 Constitutional Amendment, which forbids "a legal status identical or substantially similar to that of marriage for unmarried individuals."

The State Supreme Court will ultimately have to answer two separate questions within this case, should the decide to take it. First, what defines a relationship that is "substantially similar" to marriage? Does a single aspect of a contract between two individuals make it "substantially similar," or does there have to be more than one defining features to make it so? In other words, what traits specifically make a contract between two individuals (under Article 13, Section 13 of the State Constitution) "substantially similar" to marriage?

That's the key question that the Court will face. The second question will be simpler because its answer will depend on the answer from the first question: does the Domestic Partnership Registry fit under the terms of a "substantially similar" relationship as defined by the Court? Put differently, is the Registry similar enough to a marriage to warrant its removal?

Should the State Supreme Court take on the case, it will likely rule in favor of Wisconsin Family Action, the right-wing organization appealing the decision of a lower court that allowed the Registry to stay in place. The current makeup of the Court skews conservative, and their biases will undoubtedly play a role in their decision-making process.

Yet, there's also a case to make that the law IS in violation of the Constitutional amendment, looking even beyond those biases. The Registry was designed specifically to grant same-sex couples in committed relationships the rights they deserve, rights that are in fact substantially similar to marriage. In doing so, Domestic Partners are entering an agreement that is, in many ways, similar to marriage.

Whether or not it's SUBSTANTIALLY similar is the question to ask -- and with hundreds of rights at the state level (and thousands more at the federal) that are conferred to married couples versus those in domestic partnerships (totaling 43 overall), a case can also be made that the Registry ISN'T "substantially similar" to marriage.

In short, the Registry simply confers a few rights rather than all the rights, or even a significant fraction of the rights that married couples enjoy.

Even if the Court finds the Registry unconstitutional, the debate here misses one crucial point: the amendment itself is a violation of basic human rights. Gay and lesbian couples deserve marriage rights, plain and simple.

A Domestic Partnership Registry is a good substitute for same-sex couples for as long as that discriminatory amendment remains on the books -- but as long as that amendment IS the law, our state is engaging in discrimination that unjustly and negatively affects many Wisconsin families without proper cause (beyond the discomfort of some pretentious right-wingers).