Wisconsin’s Domestic Partnership Law

By Attorney Gregg Herman
December 21, 2012

A day late (due to the blizzard), perhaps legally wrong but politically correct, the Wisconsin Court of Appeals upheld the state’s Domestic Partnership law in Appling v. Doyle.

The case challenged the seeming inconsistency of the 2006 Wisconsin Constitutional amendment which prohibits same-sex couples from entering into a “legal status identical or substantially similar to that of marriage.”  Wis. Const. art. XIII, § 13 and the Wis. Stats. Ch. 770 which was passed in 2009 and creates the “legal status” of “domestic partnership” that carries with it some of the same rights and obligations accorded marriage.  In a lengthy, well reasoned opinion, the Court of Appeals found no conflict between the two.

Let me get my prejudice out of the way.  First, as a divorce lawyer, for economic reasons, I want everyone to get married and I don’t care if it’s a dog and a cat.   Second, as a moderate conservative, I don’t believe in government regulating the behavior of consenting adults where there is no state or other overriding interest.  The religious argument is silly as it chooses one verse from the Bible while ignoring many, many others (my favorite is the requirement to put to death children who curse their parents.  Leviticus 20:9).  And, finally, I fail to see how same sex marriage “cheapens” heterosexual marriage.

Still, the domestic partnership law certainly seems on its face to create a legal status similar to marriage.   But, a panel from District IV of the Court of Appeals (in other words, Dane County judges) held other, finding:

The same-sex domestic partnerships created by the legislature are substantially different than marriages because, among other differences, domestic partnerships carry with them substantially fewer rights and obligations than those enjoyed by and imposed on married couple.

The court stresses that it is not deciding the larger issue of Equal Protection, but only the narrow one of whether the “legal status” created by the Domestic Partnership law was substantially similar to the legal status of marriage.

The appeals court decision turns on the definition of “legal status.”  In assessing legislative intent, the court concluded:  “Both plain meaning and the historical context of passage favor interpreting ‘legal status’ as referring to eligibility, formation, and termination requirements and attending rights and obligations.”

The court describes the differences between domestic partnership and divorces (a theme I made in my article on same-sex marriage in the American Journal of Family Law).  The court concluded: 

The differences we have identified above, viewed collectively, show that the “legal status” of a domestic partnership is not “substantially similar'” to the “legal status” of marriage.  Moreover, even if we ignored the two differences relating to eligibility and formation that we discuss above, we would still conclude that the legal statuses are not “substantially similar.”

Now, I’m a family law attorney, not a constitutional law specialist.  But, the wording of the constitutional amendment is so broad, that to my simple mind, if if it did not intend to include domestic partnerships, why did it not just simply bar same-sex marriages?

This opinion is unlikely to be the final word.  In addition to the cases before the U.S. Supreme Court as discussed in a previous blog, the Wisconsin Supreme Court will likely grant review of this case.  That should make for interesting oral arguments and an interesting 2013 for constitutional scholars.

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.