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.

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.

Standing

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.

Standing

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

Oral Arguments on Marriage Equity Case Tuesday

Oral arguments are scheduled Tuesday, Nov. 3 for the marriage equity (gay marriage) case to be webcast on WisconsinEye before the Supreme Court at 9:45 A.M Central Time.

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 shortly at the Wisconsin Supreme Court Oral Arguments schedules.

One of the issues to be decided by the Court in McConkey is whether the referendum compound-question form is related to "a readily discernible single purpose."

It is not so related to a single purpose, in accordance with the "single subject" rule in Article XII, section 1 of the Wisconsin Constitution.

The language of the 2005 referendum reads: "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]

Representative of rightwingers' tortured arguments is the amicus brief filed by "Community Leaders Dedicated to Children ...":

THE AMENDMENT HAS A READILY DISCERNIBLE SINGLE PURPOSE.
Put simply, the second sentence preserves (and prevents dilution of) the public meaning and unique legal status of marriage between one man and one woman established in the first by prohibiting official sanction and endorsement of any legal status 'identical or substantially similar' to it.

The danger from such sanction and endorsement is not the extension to non-married couples of any particular assembly of 'benefits,' but rather the evolution of alternative 'substantially similar' statuses that would, if recognized for non-marital relationships, undermine the legal, social and cultural norms of marriage that have developed from factors unique to heterosexual relationships and the inherent needs of children for a married father and mother.

Everyone get that? Neither do I.

Neither does the Court that took this case to develop some rules of interpretation of the process that brings forth Constitution-amending referenda.

The Court faces the rightwingers' ludicrous proposition that the single purpose in this case is readily discerned as concern over the "evolution of alternative 'substantially similar' statuses that would, if recognized for non-marital relationships, undermine the legal, social and cultural norms of marriage that have developed from factors unique to heterosexual relationships and the inherent needs of children for a married father and mother."

An educated guess on the decision by the seven-member Court: Three to three with Justice David Prosser as the wildcard.

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

Marriage Equity Final Brief Filed

William C. McConkey filed his final brief with the Wisconsin Supreme Court last Friday in his bid to overturn Wisconsin's gay marriage ban.

McConkey's argues in William C. McConkey v. J. B. Van Hollen that the anti-gay marriage referendum resulting in the Wisconsin constitutional amendment banning same-sex marriage should be overturned because of ambiguous language in the formulation of the referendum.

The 2005 referendum question submitted to the voters on the marriage amendment is composed of two questions posed in the single referendum.

McConkey argues that this violates the "single subject" rule in Article XII, section 1 of the Wisconsin Constitution mandating that people may vote for or against more than one proposed amendment separately.

In the reply brief filed Friday, McConkey writes:

Wisconsin voters had a right to expect that a crucial issue like the potential rights and obligations of unmarried individuals who are in a relationship that is not marriage would be discussed and considered fully. Instead, it was coupled with a definition of marriage that was emotionally compelling and presented to the voters in a logrolled resolution that stymied debate and restricted the voters’ right to directly discuss and then address in the voting booth all of the issues before them.

The language of the 2005 referendum reads:

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]

The Wisconsin Department of Justice is defending the anti-gay marriage amendment.

Oral arguments are scheduled for November 3.

Friend of the Court briefs, amicus curiae, will likely also be filed with the Court.

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

DOJ Files Anti-Gay Marriage Brief

The Wisconsin Dept of Justice (DOJ) filed its response brief yesterday to a constitutional challenge to Wisconsin’s same-sex marriage ban approved in a 2006 statewide referendum composed of two questions being considered by the Wisconsin Supreme Court in a legal challenge posed by civil rights advocates.

The case, William C. McConkey v. J. B. Van Hollen, challenges the anti-gay marriage referendum on several constitutional grounds, arguing that the state’s resulting constitutional amendment should be overturned.

Constitutional Amendment Referendum

The language of the 2006 referendum reads:

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]

Single Purpose

One of the issues addressed in the case is the constitutionality of the referendum formulation that poses more than one proposition in a single ballot question that confuses Wisconsin voters.

The related question of how to determine whether such compound-question referenda serve the same general purpose and comprise the same subject matter in accordance with some case law, will also be considered by the Court.

The DOJ argues that the "general purpose of the amendment was to preserve and protect the unique and historical status of traditional marriage as a union between one man and one woman,” echoing the ruling of Dane County Circuit Judge Richard Niess, who upheld the amendment last year, saying in part that the two propositions in the referendum are “two sides of the same coin.”

So how does the Court go about determining if two propositions serve the same general purpose?

McConkey argues and the Court of Appeals April 2009 decision agrees vis a vis Judge Niess, that the “proper legal standard and methodology” for determining a general purpose is unclear from existing case law.

The DOJ brief argues that existing case law accords deference to the legislature’s formulation of referendum questions on proposed constitutional amendments.

Both the DOJ and McConkey briefs suggest judicial standards of ascertaining legislative intent of referendum questions.

Single Subject

The compound formulation of a question promotes ambiguity rendering the electorate’s ballot preference unknown because voters are only able to get to cast one yes or no to the two different questions in clear violation of the " ? Article XII, section 1 of the Wisconsin Constitution.

The DOJ does not see it that way.

Reads the DOJ brief:

The two parts of the ballot question presented to voters in November 2006 related to and furthered the general purpose of the amendment: to preserve and protect the unique and historical status of traditional marriage as a union of one man and one woman. McConkey’s strained effort to conceptually dissociate the two propositions should be rejected.

One wonders how the same general purpose of two parts of the ballot question can be served [voted upon] and ascertained, when a voter might easily be in favor of the first question but not the second question of the referendum.

The strained effort in this matter is imputing a unitary coherence onto the religious right's compound formulation. Whatever the GOP and the religious right were thinking, they did not communicate their propositions clearly to Wisconsin voters.

See also:

- Objection, Compound Referendum
- Brief Looks to Doom Wisconsin Gay Marriage Ban

Wisc Marriage Ban Suit's McConkey Quit GOP After Palin Chosen as VP

Update: Here's Judith Davidoff's Cap Times link.

Judith Davidoff has a profile up at the Capital Times, "Citizen McConkey: How a straight, married, lapsed Republican came to wage a one-man battle against Wisconsin's gay marriage ban."

McConkey is the plaintiff in William C. McConkey v. J. B. Van Hollen, the Wisconsin Supreme court case that could doom the gay marriage ban voted into the state constitution in 2006.

Turns out McConkey is a life-time Republican, who lived in Alaska for a time and quit the GOP because Sarah Palin was chosen as nominee for the vice-president.

Writes Davidoff:

Because of his time in Alaska, McConkey was familiar with Sarah Palin, though he didn't know her personally. But he knew enough, he says, to consider her unqualified to be president. And so when former presidential candidate John McCain chose Palin as his running mate last year, it was the final straw for McConkey, who at that point severed his long ties with the Republican Party.

'I lost it,' he says. 'That just showed a disregard for the American people.'

It was not a decision he made lightly. The McConkey family's allegiance to the Republican Party dates back to the Civil War, when his relatives fought on the side of the Union.

See also:
- Wisconsin Gay Marriage Ban May Go Down
- Brief Looks to Doom Wisconsin Gay Marriage Ban
- Objection, Compound Referendum

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.

Objection, Compound Referendum

When Wisconsin citizens vote on constitutional amendments, the language should be clear so that a yes or no vote records the voter’s preference on what the referendum proposes.

A clarity issue, a clarity problem, is taken up by the Wisconsin Supreme Court in the Gay Marriage Ban case likely to be decided this year. [See William C. McConkey v. J. B. Van Hollen (Appeal Number 2008AP001868.]

This lack of clarity issue will be adjudicated by considering the "single-subject test" and essentially divining the general purpose behind the gay marriage and unmarried individuals propositions comprising the referendum. [The other issue is whether the Wisconsin voter McConkey has proper standing as a voter to object to the formulation of the referendum.]

The appeals court held that the few cases on point apparently offer conflicting approaches to applying the single-subject test, and that it is not clear what is the “proper method for determining the purpose of a proposed amendment” which would offer some guidance on this issue.

Constitutional amendment language

The language of the 2006 referendum reads:

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]

Reading the question‘s 59 words, it’s easy to spot a problem in the formulation of the amendment language.

Compound question

It’s a compound question that asks for one response to two propositions from the voters on 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.

As mentioned, this problem is addressed in the judiciary through the “single-subject test,” cited as the central question by the Wisconsin Court of Appeals (District IV) decision to certify the case to Wisconsin Supreme Court: “[Was] the marriage amendment (enacted) in violation of the single-subject rule set forth in Article XII, section 1 of the Wisconsin Constitution.”

Common sense

Let’s apply some common sense analysis vis a vis Dane County Circuit Judge Richard Niess.

As reported in The Capital Times:

In his ruling last year, Dane County Circuit Judge Richard Niess said McConkey could sue (and his case was not tossed, and so moved ahead). But he ruled the two clauses in the referendum question were ‘two sides of the same coin’ and properly decided with one vote.

‘They clearly relate to the same subject matter and further the same purpose: the preservation and protection of the unique and historical status of traditional marriage,’ he said in a ruling from the bench.

What in Sam’s hell you thinking, Judge Niess? That's the same conclusion reached by the religious right, J.B. Van Hollen and the GOP who put this referendum on the ballot in the first place: "(H)istorical status of traditional marriage" is a GOP talking point used to protect America from the gays.

There is no justification for Niess imputing a unitary coherence onto the religious right's compound formulation.

This would be like the GOP passing an amendment calling for banning evolution being taught in public schools and prohibiting sex education in the schools, and the Niess saying the questions are related because of they further 'the preservation and protection of the unique and historical status of traditional family values.'

The first part of the referendum question asks about one man-one woman and marriage.

The second part of the question asks about “unmarried individuals” not having relationships resembling a legal marriage without mention of any gender requirement of the individuals in question.

The second part of the question applies to relationships among unmarried individuals and constraints on the legal recognition of certain relationships between unmarried individuals of unspecified gender that “shall not be valid or recognized in this state.”

Do you think a voter could be in favor of the first question but not the second?

And since the voter is forced to answer both questions with one yes or no, that there might be a problem of ambiguity here with the formulation?

Judge Niess’ speculation

Furthermore, Judge Niess’ speculation that the legislative purpose of the amendment is the “preservation and protection of the unique and historical status of traditional marriage” is foolish (and astoundingly ignorant) in the face of the dynamic, evolving history of marriage.

Back to the formulation. Banning same sex marriage in the first proposition. But what happened to same sex exclusions in the second proposition? It’s not there and the propositions are two different subjects with two very different political histories and two different public policy effects.

If Niess wants to speculate on purpose, he would be more on target to assert the GOP and religious right want to punish gays with whom they have both a strange interest and enmity.

And on the second matter, the GOP's politics are very weird about society sanctioning relationships between unmarried individuals of any gender because of their particular mores or political objectives of the moment.

In any event, Niess’ ruling sent the case forward to an appeals court that certified it for Supreme Court hearing.

Let’s hope the Supreme Court invalidates this plain compound-question referendum and the shameful constitutional amendment that it brought us, and creates a judicial doctrine that would offer guidance in the future for clear judicial policymaking should we ever again elect a legislature foolish enough to send voters a compound question as a referendum again.