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Friday, October 27, 2006 

About that Marriage Amendment...

As I have said before on here, I have no strong personal feelings about the gay marriage issue itself in general or the Marriage Amendment in particular. I have been following the issue though, mostly because it's almost impossible to avoid it in the legal world. I would like to take the time to make a few observations about the legal aspects of the issue in Wisconsin and about the debate itself.

Voting yes on the Amendment is a vote based on a belief. It's a vote based on what the proper definition of the term "marriage" is in our society. I think that taking a position like that is perfectly justifiable. Black's Law Dictionary defines marriage as follows...
The legal union of a man and woman as husband and wife. The essentials of a valid marriage are (1) parties legally capable of contracting to marry, (2) mutual consent of agreement, and (3) an actual contracting in the form prescribed by law.
Of course, one must recognize that definitions can and do change. However, if the definition as quoted from Black's is the one that the people of Wisconsin agree with, what is wrong with that?

There are concerns about putting any one definition of marriage into the state constitution. Putting a fairly concrete definition of marriage in the constitution, especially one that closes off the possibility of civil unions, is a major step. It makes it much harder for future generations (who may have different views on this subject) from legislating those. This was one of Judge J. Harvie Wilkinson's problems with the Virginia amendment...
Ordinary legislation -- not constitutional amendments -- should express the community's view that marriage "shall consist only of the union of a man and a woman." To use the Constitution for prescriptions of policy is to shackle future generations that should have the same right as ours to enact policies of their own.
The counter to that is that the constitution can be amended again. Depending on the political climate at that time, it may be very difficult or fairly easy. That's all just speculation on unknown future events. But make no mistake about it. Amending the constitution is a big deal and should not be done lightly.

Some of the arguments and claims being put forth by the Vote No crowd have concerned me. One of the big claims is that nothing will change in Wisconsin if the Amendment is defeated. The statutory definition of marriage between a man and a woman will still be on the books. Well, that's technically true, but that's nowhere near the whole story, legally speaking. There is nothing stopping someone from challenging the constitutionality, probably on Equal Protection grounds, of that statutory definition. And now the question is in the courts, something that the Vote Yes crowd has been trying to avoid. What would the Wisconsin State Supreme Court do?

Prof. Althouse recently linked to an incredibly interesting article in the Wisconsin State Journal about this very issue. This article contains some very candid statements by former Wisconsin Supreme Court Justices...
"In my judgment that would be a very, very close vote on the court," said William Bablitch, a former Supreme Court justice who served on the court for two decades and took part in two key decisions relating to gay couples and families. "It could come out either way."
That's not exactly comforting to people who don't want gay marriage or civil unions enacted by judicial fiat. Let's count votes...
For his part, Bablitch guessed that in a hypothetical marriage law challenge, of the court's seven members, Justices Abrahamson and Ann Walsh Bradley would likely vote to throw the current law out and Wilcox, appointed by former Republican Gov. Tommy Thompson, and Justice Pat Roggensack would likely vote to uphold it.

Justice Louis Butler Jr., an appointee of Democratic Gov. Jim Doyle, might vote to throw out the law as well, Bablitch said. That would be 3-2 in favor of ending the ban on gay marriage, leaving Justice N. Patrick Crooks and Justice David Prosser Jr., another Thompson appointee, to decide which side would prevail.
I agree with the analysis by Bablitch, but I think that Justice Butler is a solid vote to throw out the law. Of course, this analysis is based on the current composition of the court. There is no pending case, and any case would probably take a while to get through the circuit court and the appeals court (unless the appeals court punts it right up to the state supreme court, and they certainly can ask for that). As former Chief Justice Geske says in the article, a case could take two to three years to make it through the courts. Justice Wilcox, a solid vote to uphold the law, is retiring in July. His seat is likely to be filled by either Madison attorney Linda Clifford (a liberal) or Judge Annette Ziegler (a conservative). That possible shift in the court's composition would have an effect on any potential decision.

Would the court actually strike down the marriage statute? Some say no...
Mike Tate, campaign manager of anti-amendment group Fair Wisconsin, said he sees harmful consequences to the proposal and no strong chance that a Wisconsin court would approve gay marriage. "It's really highly unlikely that we'd see judges go against the grain of popular opinion."
With all due respect to Mr. Tate, I have to disagree. This is the court that rewrote the rational basis test and struck down the statutory limits on noneconomic damages in medical malpractice cases. This is the court that got rid of the individual causation requirement for tort liability for lead paint manufacturers. This is the court that claimed their supervisory authority over the court system lets them impose a new rule on law enforcement that all juvenile custodial interrogations be electronically recorded. The majority of this court will do whatever they want. They've demonstrated that time and time again. And because any decision that they make will be undoubtedly based on the Wisconsin constitution and not the federal Constitution, it cannot be appealed any further. It's the law.

Another problem that I have with the claim that "nothing will happen" is that some of the people making that claim don't believe it themselves. Frequent Vote Yes speaker Rick Esenberg has made this point...
This has lead to a kind of surreal campaign in which folks who believe in same sex marriage and who think that the current unavailability of marriage to same sex couples is unjust argue against the amendment by assuring us that what they see as an injustice will continue.
If you want gay marriage in this state, then argue for it. It's a perfectly defensible position. Just don't say to one group of people that nothing will happen and then say to another group that Equal Protection demands gay marriage rights. It's underhanded.

Another problem that I have with the Vote No crowd is the claim that the second sentence of the Amendment will have far reaching effects. Proponents of the Amendment say that the second sentence is designed to prevent courts from "pulling a Vermont" (and now, a New Jersey), demanding some equal structure for gay partners, probably civil unions of some type. The Vote No groups say that the second sentence, which does not allow "a legal status identical or substantially similar to that of marriage for unmarried individuals," puts other legal arrangements in jeopardy. These include financial and medical powers of attorney, wills, trusts, and guardianships. The claim is that these instruments, used by both gay and straight unmarried individuals, could be voided by the courts as being a legal status identical or substantially similar to marriage. I know of no case in the country where this has happened with one of those legal instruments. If someone could cite one, I would be eager to read it and see the court's reasoning. These are very old and recognized legal arrangements. I would be very surprised to see a court void one based on the Amendment language.

I also think it's a little suspect to claim that we don't know how the courts will apply the Amendment language to these legal arrangements, but then claim that the state supreme court will not demand gay marriage or civil unions absent the Amendment. As I said, there hasn't been a case where these legal arrangements have been thrown out (and again, if there is one, I just haven't seen it yet). However, there have been cases where state supreme courts have demanded gay marriage and/or civil unions. There's much more evidence that that result is more likely.

This is getting very long and I should wrap things up. I think that people who believe that marriage is between a man and a woman and don't want to see that changed should probably vote for this Amendment. I think that the Wisconsin Supreme Court with its current membership, would very closely strike down the current marriage statute. I also think that it is very likely that a case will be brought in the near future asking the court to do just that.

I think that people who want gay marriage, civil unions, or either of them in the near future should probably vote against the Amendment. While the state constitution can be amended again, it's probably not going to be easy. There is a definite sense of permanency about this definition of marriage. The state will be stuck with it.

Personally, I take the position that I have had since the issue of the Amendment first came up. I'm not voting for it, and I'm not voting against it. I don't know if anything will change my mind between now and election day, but it's possible.

I enjoyed reading your analysis, but am somewhat saddened that after all that you are unable to form a conclusion.

Perhaps some, those unburdened by facts, will never agree on this – but hopefully others will see that science and medicine have only in recent decades conducted research into homosexuality and the facts and conclusions are far from being accepted or understood broadly in our population. The fact that enlightened countries and states in the western world have begun in recent years to extend full civil rights to gays and lesbians in indicative that there is a change abroad in the world – this issue is in flux, as have most social changes that we now accept (i.e. the end of slavery, equal rights for women, elimination of child labor). For such a social matter in flux to be written in stone into our Constitutions, to me, certainly is outside the promise of our Constitution and our American tradition.

http://www.kentlaw.edu/7cr/

I think that if the constitution is amended, we will look back on it with a great deal of regret sometime down the road. And yes, it can be re-amended, but, as you said, that's not what constitutions are for.

Your analysis has a lot of good facts in it. You're right that some basic rights (powers of attorney, wills, trusts) probably won't be voided, but I'll bet others will be hotly contested, such as guardianships.

But even if these rights probably won't be voided, why take the risk? We can strip gays of a whole series of rights, and then cross our fingers that the courts don't interpret the constitutional amendment too strictly, or we can just throw out the amendment (and then demand that the legislature write a better one, if you want).

I think Tate mentions that these rights can be voided not because the scenario is highly probable -- I'm sure he knows that it's not. His point is that it is possible, and people need to know this. Why even risk such a catastrophic scenario?

So, while I agree with most of your analysis of the judicial issues at hand (e.g. it won't be long until there is marriage or at least civil unions), the real question is, why should we strip basic individual rights from 10% of the population? Whose rights will the amendment protect? Those that get squirmy at the thought of gays being gay? How will stripping 10% of the population of their rights make my life better?

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