Constitutional challenge to last year's civil unions and marriage ban can proceed

November 30, 2007

Fair Wisconsin is pleased to report some good news.  A constitutional challenge to last year’s marriage and civil unions ban can proceed, following Wednesday afternoon's decision by Dane County Judge Rick Niess.

While the decision concerned the narrow issue of legal standing by the plaintiff, the judge's comments were inspiring by invoking the right of voters to have confidence in their elections, and in the voting process, and also the right to consider constitutional amendments one at a time.

The challenge is based on another provision in the Wisconsin Constitution which forbids “bundling” in proposals to amend the Constitution.  That is, any proposed amendment to the Constitution must be limited to a single subject so that voters can make separate decisions about each proposed change.

The plaintiff in the case, William McConkey, a political science instructor at UW-Oshkosh, contends that the amendment violated the Constitution by offering two distinct questions. The amendment forbids same-sex couples from marrying, and also forbids the State from providing for a legal relationship identical to or substantially similar to that of marriage for all couples.

Mr. McConkey contends that the legislature violated the bundling provision and harmed him as a voter.  The state argued that since he is straight and married, he wasn't harmed by the actual substance of the amendment.  The Court's decision affirmed Mr. McConkey's argument.

Polling in 2005 and 2006 showed that voters supported allowing same-sex couples similar legal protections as those provided by marriage, such as through Vermont-style civil unions, but felt marriage should be reserved for heterosexual couples. By placing both questions in one proposed amendment, voters were forced to vote the same way on both questions, even if given the choice they would have voted no on one question and yes on the other.

Fair Wisconsin warned legislators about this violation before and during the campaign.  We applaud Mr. McConkey's leadership on this important issue.

The next step is for Judge Niess to rule on whether the amendment adopted by the voters last year was in fact procedurally defective and therefore illegitimate. Fair Wisconsin applauds his decision and looks forward to an eventual favorable ruling on the merits.