Nov 3, 2009

Oral Arguments Held on Marriage Equity Case

Oral arguments were heard before the Wisconsin Supreme Court on the Wisconsin gay marriage case, William C. McConkey v. J. B. Van Hollen, that could overturn Wisconsin's gay marriage ban in an extended hearing lasting some 98 minutes this morning.

Though perhaps the most contentious legal issue concerns conformity with the "single subject" constitutional mandate, and not the merits of equity, equal protection and due process, the political sides have been chosen: Hardline, social rightwingers against civil libertarians, political liberals and humanists.

Lester Pines, attorney for William C. McConkey, argued today that the "rights of voters" were unlawfully violated by the 2006 gay marriage ban amendment's resolution that was not submitted in proper form and presented to the voters in the 2006 election because the referendum "submitted two separate amendments."

"William McConkey was denied the right to fully participate in the direct democracy that was going on" during the referendum campaign because of the referendum's non-single-subject form that is prohibited under the "single subject" rule in in Article XII, section 1 of the Wisconsin Constitution, said attorney Pines. Pines also asserted a violation of free speech rights of McConkey's, later stating this injury and denial of rights contributed to his standing under dispute.


At issue also is the question of standing of plaintiff McConkey to challenge the referendum, but legal observers see a Court affirmation of McConkey's standing as likely.

Purpose of a Proposed Constitutional Amendment

McConkey is seeking also to establish rules of interpretation by the Court's investigation of the purpose behind Constitutional amendment referendum questions generally, that would allow the Court to read the "plain words" and "plain meanings" of the referendum language, using accepted rules of statutory interpretation that currently are used to determine statutory purpose, Pines argued.

Pines argued that there are separate purposes in the referendum reading: "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?" [Emphasis added]

These two questions comprising two purposes are an "unconstitutional submission" in the 2005 referendum language, Pines said.

Wisconsin Department of Justice (DoJ)

Wisconsin Department of Justice assistant attorney general Lewis Beilin and deputy attorney general Raymond P. Taffora were present, arguing against McConkey, in favor of the referendum form and the resulting constitutional amendment banning gay marriage.

Attorney Beilin said that for McConkey to prevail he would have to convince the Court that the two referendum questions "have absolutely nothing to do with one another," and furthermore that the legislature's constructing the referendum questions should be given deference by the Court.

Beilin is asking for the Court's interpretation of purpose on the referendum by looking at "context," and deference to the legislature's wording of the referendum and contemporaneous sources of information.

Justice David Prosser said attorney Beilin's suggested method of interpretation appeared "amorphous."

Justice Bradley quoted from a contemporaneous source on information in a Racine daily newspaper article in which a legislator and sponsor of the referendum suggested she would vote differently on the two separate clauses of the referendum question.

Pressed for the "plain words" of the constitutional amendments comprising two precise propositions, Beilin said there are two propositions but "one subject ... that furthered the same general purpose."

Beilin said the overall purpose is to limit marriage as one man and a woman; and limit marriage status as one and one woman, as in the ruling of a Dane County Circuit Court judge.

Justice Abrahamson appeared to express skepticism toward a hypothetical level of generality to be used to ascertain the purpose behind a multi-question referendum.


Beilin said that McConkey does not have standing because McConkey has suffered no injury because he would have voted "no" on both propositions of the referendum, were the propositions presented separately. Beilin later stated that he advises against searching for "empirical evidence" on how Wisconsin voters would have voted were the two propositions presented singly. Beilin asserted that McConkey was not "personally and directly injured."

McConkey Rebuttal

Pines said on the manner of ascertaining the purpose of referendum questions that the DoJ proposes a "wide-ranging standard, really kind of a kitchen sink" analysis that would allow the court to do anything it wanted without rules of interpretation and guidance. Pines called this a "free-for-all" test as against an "organized test for determining purpose" advocated by McConkey.

Oral arguments can accessed at WisconsinEye.

The William C. McConkey v. J. B. Van Hollen case is drawing attention as gay marriage retains its status as a politically contentions issue used by the Republican Party.

A case synopsis should be available sat the Wisconsin Supreme Court Oral Arguments schedules.
See also:

- Brief Looks to Doom Wisconsin Gay Marriage Ban
- DOJ Files Anti-Gay Marriage Brief
- Wisconsin Gay Marriage Ban May Go Down
- Objection, Compound Referendum

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