Wisconsin Court Upholds Domestic Partner Registry

Gay rights advocates scored a major win Friday when an appeals court ruled Wisconsin's domestic partnership registry was constitutional, but the victory could be short-lived as conservatives pledged to take the case to the Republican-leaning state Supreme Court.

Conservatives had argued the registry bestows a status similar to marriage on same-sex couples and violates a 2006 state constitutional amendment prohibiting gay marriage or anything substantially similar to it.

The 4th District Court of Appeals disagreed. The court noted that legislators who supported the ban repeatedly said it wouldn't prevent same-sex couples from receiving some benefits and went on to list a range of rights married couples enjoy that same-sex couples still don't, including joint property ownership, joint adoption and the ability to share health benefits even after a divorce.

Fair Wisconsin, the state's largest gay rights group, defended the registry in court. Its executive director hailed Friday's decision.

"It demonstrates that Wisconsin really is about trying to treat people fairly," Katie Belanger said. "That's what we believe in. The amendment was an unfortunate setback for equality in Wisconsin. But we still believe caring and committed couples should have legal protections to take care of each other in times of need."

Democratic lawmakers created the registry in 2009. Same-sex couples who join it are afforded a host of legal rights, including the right to visit each other in hospitals and make end-of-life decisions for one another. About 1,800 couples were on the registry at the end of 2011, according to the latest data from the state Department of Health Services.

Members of the conservative group Wisconsin Family Action filed a lawsuit in 2010 claiming the registry created a legal status substantially similar to marriage for same-sex couples and therefore violated the constitutional ban on gay marriage. The case is the first of its kind in the country, Belanger said; no other states have banned gay marriage and anything similar, while establishing a domestic partner registry, she said.

Republican Attorney General J.B. Van Hollen refused to defend the registry, declaring it was clearly unconstitutional. Former Gov. Jim Doyle, a Democrat, appointed private attorneys to defend it, but Republican Gov. Scott Walker fired them after he took office in 2011 because he, too, believed the registry was unconstitutional. That left Fair Wisconsin as the registry's only defender.

Dane County Circuit Judge Daniel Moeser ruled last summer that the registry was constitutional and not substantially similar to marriage.

Wisconsin Family Action members appealed. The 4th District tried to send the case directly to the state Supreme Court this past July, calling it a novel constitutional issue with statewide significance. The state's high court, which is dominated by conservative justices, refused to hear the case and sent it back to the appellate level.

Austin R. Nimocks, an attorney with the Alliance Defending Freedom, a legal ministry representing Wisconsin Family Action members, said in an email he would appeal Friday's decision to the Wisconsin Supreme Court.

"The people of Wisconsin recognize that marriage provides a strong foundation for a thriving society," Nimrocks wrote. "That's why they approved a constitutional amendment that specifically protects marriage from all imitators. Politicians and activist groups should not be allowed to get around that."

Belanger said her group has always expected the case would end up in front of the state Supreme Court.

"We're confident given two very strong opinions coming from the circuit court and the court of appeals," she said. "We're very well positioned for a successful outcome."

The appeals court issued a unanimous decision in the case, saying voters believed the gay marriage amendment wouldn't block benefits for same-sex couples, in part because Republicans who sponsored the amendment said as much in news releases and newspaper stories.

Specifically, the court pointed to an op-ed piece published in a University of Wisconsin-Madison student newspaper written by Wisconsin Family Action President Julaine Appling, one of the plaintiffs in the case. Appling said in the piece the marriage amendment wouldn't block legislators from considering some "legal construct ... that would give select benefits to co-habiting adults."

She released a statement Friday saying her group wouldn't give up.

"The people of Wisconsin have strongly affirmed the lifelong, faithful union of a man and a woman as the fundamental building block of civilization," she said. "Our system of government serves no purpose if politicians can ignore the will of the people with impunity."