When Wisconsin passed its amendment banning same-sex marriage in 2006, it also prohibited the recognition of any “legal status identical or substantially similar to that of marriage.” The Wisconsin Supreme Court ruled Thursday that the state’s 2009 same-sex domestic partner law is constitutional and does not conflict with the marriage amendment.
The suit challenging the constitutionality of the partnership law was brought by Wisconsin Family Action, the state’s social conservative organization, and Gov. Scott Walker (R) refused to defend it. That left Fair Wisconsin, the state’s LGBT advocacy group, to defend the law, with support from Lambda Legal.
The plaintiffs argued that domestic partnerships are “substantially similar” to marriage because of how they’re structured: they are “1) between two persons 2) who are over a certain age, 3) who are competent to consent, 4) who are in an exclusive relationship, 5) who are of specified sexes, and 6) who are not closely related.” But the Court noted that proponents of the marriage amendment specifically told voters that it “would not stop the legislature from creating a mechanism to grant rights to non-married same-sex couples,” so long as they weren’t offered all of the benefits of marriage — i.e. “marriage by another name.”
Thus, the measure the Court applied was not whether the relationships look the same, but whether they are treated the same. Wisconsin’s domestic partner benefits only offer 43 legal protections to same-sex couples, far short of the more than 200 granted to married couples under state law. The disparity between the two kinds of unions is even greater in the wake of the U.S. Supreme Court’s decision last summer overturning the federal Defense of Marriage Act. The decision notes that the federal government now recognizes married same-sex couples for various benefits but still does not recognize other unions like domestic partnerships. “In light of the totality of those differences,” the Court concluded that the law is constitutional.
A federal judge overturned Wisconsin’s ban on same-sex marriage and similar unions earlier this summer. That decision was stayed, which means domestic partnerships continue to be the only avenue for same-sex couples to access benefits until the marriage case is resolved. The state has appealed that decision to the Seventh Circuit Court of Appeals, which will hear oral arguments — along with a similar appeal from Indiana — on August 26.