Nov 3, 2009

Prediction: Wisconsin Overturns Gay Marriage Ban in 2010

***Prediction—Four-to-three; Wisconsin's gay marriage ban overturned next year.—Aware of the problems of predicting the votes of judges on the Wisconsin Supreme Court, note Justice Prosser's skepticism as he pressed DoJ asst ag Lewis Beilin in a dialogue on interpreting, and formulating a method of interpreting the purpose—be it singular or multiple purposes—of a constitutional amendment.

Said Justice Prosser [begun at the 48-minute, 26-second mark], "How the heck do we figure out what the purpose of an amendment is? ... Again if I may, we get certified questions from the Court of Appeals all the time. We get questions posed and petitions for review all the time and we can rephrase those questions. There's considerable liberty in the Court in rephrasing the question to try to decide the case. Mr. McConkey is, for good or ill, is saying, 'here is a nice, clear-cut methodology, you look to the language and the relating clause of the [referendum] resolution and that will be your purpose.' You're saying, 'let's look at everything here, look at everything and then state the purpose.' I sort of agree with you in a sense, but it's so amorphous. Help."

Attorney Beilin's reply is less-than-specific, and certainly not convincing that the referendum's language is clear, of one purpose, and is a constitutional submission to the people of Wisconsin, much less a useful suggestion that establishes a rule of law in judicial policy in interpreting the "single subject" rule in Article XII, section 1 of the Wisconsin Constitution.

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