Domestic Partnership Case Puzzling

By Attorney Gregg Herman
August 1, 2014

There is an old saying that the U.S. Supreme Court reads elections returns. While that saying relates to the SCOTUS, it also applies to the Wisconsin Supreme Court.

Today, the Wisconsin Supreme Court apparently finished the flood of decisions which it reserves to the end of its term. Interestingly, to the best of my counting, every single decision except one was split between the liberal judges (CJ Abrahamson and J. Bradley) and the conservative judges (Justices Gableman, Ziegler and Roggensack) with two swing judges (Justices Prosser and Crooks) determining the result. For example, I could not find one criminal case where the liberal judges did not side with the defendant and the conservatives did not side with the state.

I believe that the only unanimous decision all term was in Appling v. Walker, where the court found that same-sex domestic partnerships created by Chapter 770 do not violate the provision of the Wisconsin Constitution which prohibits “A legal status identical or substantially similar to that of marriage for unmarried individuals.” Of course, the two liberal justices did not join the majority opinion, filing a concurrence instead. Still, all seven agreed on the result, for perhaps the only time all session.

While I do not profess to be an expert on Wisconsin constitutional law, please explain to me how a domestic partnership law is not “similar” to a legal status for marriage? Of course it is! That is why is a domestic partnership law was enacted in the first place – to give unmarried partners some of the same rights as married partners. The only way I can explain the result is that the political scene has shifted away from the “one man, one woman” definition of marriage and SCOTUS does not want to be caught on the wrong side. This has been an amazingly fast transition – Defense of Marriage Act (DOMA) was enacted in 1996 and signed into law by a liberal, Democratic president. Yet only 18 years later, conservatives are leaning over backwards to award status of unmarried couples, including those of the same sex.

As I’ve said before in this blog – I favor allowing same-sex couples to marry and as a result, I also favor domestic partnership laws. As generally tending to conservative views, I don’t understand why government has any right inserting itself into the private relationship of two consenting adults in most cases (the reason for the caveat is that I continue to have a problem with legalizing prostitution or polygamy, but who says I have to be consistent?).

It is not unusual in our legal system where the politics drive the law, rather than the other way around. Sometimes (like here) the result is a good one. The process of getting there, however, can be, well, interesting.

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.