Brief Looks to Doom Wisconsin Gay Marriage Ban

Update: McConkey brief is now available online.

Wisconsin's gay marriage ban resolutions were shepherded through the 2003-05 legislative sessions with exclusive Republican support.

But the gay marriage referendum was written so broadly and ambiguously that the resulting constitutional amendment will likely be struck down in the William C. McConkey v. J. B. Van Hollen (Appeal Number 2008AP001868) Wisconsin Supreme court case.

Reading the McConkey brief filed yesterday is like a breath of fresh air; nothing quite like rigorous logic defeating cynical bigotry.

One big problem with the 2006 referendum is that its formulation is a compound question that asks for one response to two different propositions in the same referendum question.

This compound formulation promotes ambiguity rendering the electorate’s ballot preference unknown because voters were only able to get to cast one yes or no to the two different questions in clear violation of the "single-subject" rule set forth in Article XII, section 1 of the Wisconsin Constitution.

Divining a Purpose

Dane County Circuit Judge Richard Niess, who upheld the amendment last year, saying the two clauses in the referendum question were ‘two sides of the same coin’ and properly decided with one vote will likely regret his ill-informed decision that invented a legislative purpose for the two propositons.

Judge Niess said that the legislative purpose of the amendment is the “preservation and protection of the unique and historical status of traditional marriage,” a foolish (and astoundingly ignorant) statement in the face of the dynamic, evolving history of marriage and a purpose he imputes to the legislature with no evidence.

Reads the McConkey brief on this point:

Were the Court to base its determination of a proposed amendment’s purpose on something other than the one found in the Enrolled Joint Resolutions, for instance, by determining purpose from statements made by those participating in the public debate surrounding the amendment, it would be deviating from the determination of purpose already made by the Legislature and legislating from the bench. That is what the circuit court did, when it found that the purpose of the amendment was 'the preservation and protection of the unique and historical status of traditional marriage.' (R. 1, A-App. 7), 2003 J.R. 29 and 2005 J.R. 30 say nothing about preservation, protection, uniqueness, traditional marriage or historical status. [Emphasis added]

Judge Niess can't just make stuff up; he's a judge.

Single Subject

Reads the McConkey brief filed yesterday on the compound question, single subject issue:

The circuit court concluded that the two propositions were ‘two sides of the same coin.’ That is incorrect. Had the second portion of the ballot question merely proposed that ‘marriage between any other individuals shall not be allowed, recognized or valid in this state,’ the circuit court’s observation would be true. But the second proposition was not so limited. It was not the obverse [logical counterpart] of the first.

Rather, the first proposition stated whose marriages would be recognized as valid by the state, and the second proposition limited the legislature’s power to provide to unmarried people a status that is ‘identical or substantially similar’ to marriage. That is a far different purpose than the first.

The Legislature erred by trying to accomplish two separate and distinct things through one ballot question. By having those two distinct purposes, the ballot question violated the single general purpose prong of the single amendment requirement set out in Article XII, Section 1 of the Wisconsin Constitution. Having done so, Article XIII, Section 13 is unconstitutional.

The Attorney General’s reply brief is due on August 13th.