Appling v. Doyle
| Decision Date | 20 December 2012 |
| Docket Number | No. 2011AP1572.,2011AP1572. |
| Parties | Julaine K. APPLING, Jo Egelhoff, Jaren E. Hiller, Richard Kessenich and Edmund L. Webster, Plaintiffs–Appellants. v. James E. DOYLE, Karen Timberlake and John Kiesow, Defendants–Respondents, Fair Wisconsin, Inc., Glenn Carlson, Michael Childers, Crystal Hyslop, Janice Czyscon, Kathy Flores, Ann Kendzierski, David Kopitzke, Paul Klawiter, Chad Wege and Andrew Wege, Intervening Defendants–Respondents. |
| Court | Wisconsin Court of Appeals |
OPINION TEXT STARTS HERE
On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Michael D. Dean of First Freedoms Foundation, Inc., Brookfield; Richard Esenberg of Mequon; Austin R. Nimocks of Alliance Defense Fund, Washington, D.C.; and Brian W. Raum of Alliance Defense Fund, Scottsdale, Arizona.
On behalf of the intervening defendants-respondents, the cause was submitted on the brief of Brian E. Butler and Barbara A. Neider of Stafford Rosenbaum LLP, Madison, and Christopher R. Clark of Lambda Legal Defense & Education Fund, Chicago, Illinois.
A nonparty brief was filed by Dyann L. Hafner, assistant corporation counsel, and Marcia MacKenzie, corporation counsel, of Office of the Dane County Corporation Counsel, Madison, for Dane County.
A nonparty brief was filed by Laurence J. Dupuis of ACLU of Wisconsin Foundation, Inc., Milwaukee; John A. Knight of American Civil Liberties Union Foundation, Chicago, Illinois; Linda E.B. Hansen and Daniel A. Manna of Foley & Lardner LLP, Milwaukee; and David B. Goroff of Foley & Lardner LLP, Chicago, Illinois, for American Civil Liberties Union.
Before LUNDSTEN, P.J., HIGGINBOTHAM and BRENNAN, JJ.
[345 Wis.2d 764]¶ 1 Wisconsin's marriage amendment, ratified by voters in 2006, declares that the only “marriage” recognized in Wisconsin is a marriage “between one man and one woman.” The amendment prohibits same-sex couples from entering into a “legal status identical or substantially similar to that of marriage.” Wis. Const. art. XIII, § 13.
¶ 2 In 2009, our legislature passed a domestic partnership law, Wis. Stat. ch. 770.1 This law creates the “legal status” of “domestic partnership” that carries with it some of the same rights and obligations accorded marriage.
¶ 3 Julaine Appling and other plaintiffs (collectively Appling, except where we refer to Julaine Appling individually) filed suit challenging the constitutionality of the domestic partnership law. Fair Wisconsin, Inc. and ten individuals (collectively Fair Wisconsin) intervened as defendants. 2 Appling contends that the domestic partnership law violates the marriage amendment because the partnership law creates a “legal status” that is “substantially similar to that of marriage.” We agree with the circuit court that it does not.
¶ 4 Appling has the burden of showing that the domestic partnership law is unconstitutional beyond a reasonable doubt. As explained further below, Appling must demonstrate, by reference to the language of the marriage amendment and other voter-intent evidence, that voters intended to prohibit the particular type of domestic partnership created by the legislature. We conclude that Appling falls far short of meeting her burden. As we shall see, there is little reason to think informed voters believed that the marriage amendment language would prohibit the domestic partnerships at issue here. The same-sex domestic partnerships created by the legislature are substantially different than marriagesbecause, among other differences, domestic partnerships carry with them substantially fewer rights and obligations than those enjoyed by and imposed on married couples.3
¶ 5 This case is not about whether the Wisconsin or United States Constitutions require, on equal protection or other grounds, that same-sex couples have the right to a legally recognized relationship that is identical or substantially similar to marriage. To the contrary, for the domestic partnership law to pass muster here, the “legal status” created by that law may not be “substantially similar” to the “legal status” of marriage. Because the legal and evidentiary arguments of the parties persuade us that the two are not “substantially similar,” we affirm the circuit court's decision holding that the domestic partnership law does not violate the marriage amendment.
¶ 6 During the 2003 and 2005 legislative sessions, successive legislatures passed joint resolutions which resulted in putting the following proposed constitutional amendment before the voters:
Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.
On November 7, 2006, a majority of voters ratified this amendment by voting yes.
¶ 7 Three years later, in 2009, the Wisconsin legislature created a chapter in the Wisconsin statutes establishing domestic partnerships as an option for same-sex couples. Wisconsin Stat. ch. 770 contains eligibility requirements and prescribes the manner in which such partnerships are formed and terminated. Chapter 770 does not specify the rights and obligations of domestic partnerships. The mechanism the legislature chose for conferring rights and obligations was to select a subset of rights and obligations found in other parts of the statutes that already apply to marriages and then indicate, in the text of those other statutes, that they apply to domestic partnerships. For example, Wis. Stat. § 861.21(2), the statute assigning to a surviving spouse his or her decedent spouse's interest in their home, was made applicable to domestic partnerships.
¶ 8 Appling brought this action to challenge the constitutionality of the domestic partnership law. Appling and Fair Wisconsin both moved for summary judgment and the circuit court granted judgment in favor of Fair Wisconsin, declaring that the domestic partnership law does not violate the marriage amendment. Appling appeals.
¶ 9 We review a circuit court's decision on summary judgment de novo, applying the same standard as the circuit court. Sherry v. Salvo, 205 Wis.2d 14, 21, 555 N.W.2d 402 (Ct.App.1996). Under summary judgment methodology, “[i]f there is no dispute as to the material facts or inferences, ... summary judgment is appropriate and we proceed to [resolve the dispute by considering] the legal issue or issues raised by the [summary judgment] motion.” Id. at 21 n. 3, 555 N.W.2d 402. Here, there is no dispute about the facts and, accordingly, we focus on the parties' legal disputes and the application of law to the undisputed facts.
¶ 10 Appling challenges the constitutionality of legislation and, therefore, has the burden of showing, beyond a reasonable doubt, that the legislation violates the constitution. See Norquist v. Zeuske, 211 Wis.2d 241, 250, 564 N.W.2d 748 (1997). The burden is placed on challengers to legislative acts because “[a]ll legislative acts are presumed constitutional and every presumption must be indulged to uphold the law if at all possible.” Id. This court may not concern itself with the wisdom of the legislation—our only concern is with whether the legislation clearly contravenes the constitution. State v. Cole, 2003 WI 112, ¶ 18, 264 Wis.2d 520, 665 N.W.2d 328.
¶ 11 The challenge to the legislation here requires us to interpret the meaning of a constitutional amendment ratified by voters. Consequently, our task is to construe the amendment “to give effect to the intent ... of the people who adopted it.” Dairyland Greyhound Park, Inc. v. Doyle, 2006 WI 107, ¶ 19, 295 Wis.2d 1, 719 N.W.2d 408. We examine three sources to determine voter intent: “the plain meaning, the constitutional debates and practices of the time, and the earliest interpretations of the provision by the legislature, as manifested through the first legislative action following adoption.” Id. In contrast with statutory construction,we do not stop with an analysis of the text, even if that analysis reveals unambiguous language. See Buse v. Smith, 74 Wis.2d 550, 568, 247 N.W.2d 141 (1976).
¶ 12 An examination of the first source, “plain meaning,” requires a search for the ordinary meaning of the amendment's language. Dairyland, 295 Wis.2d 1, ¶ 117, 719 N.W.2d 408 (Prosser, J., concurring in part, dissenting in part) (citations omitted).
¶ 13 The second source of voter intent is “the constitutional debates and practices of the time.” This inquiry includes examining the debates surrounding the amendment, including statements from legislators as well as public statements made during the ratification campaign by other persons knowledgeable about the amendment. See id., ¶ 24 (majority opinion) (). Public statements meant to educate the public by what appear to be knowledgeable persons are an indicator of voter understanding of the amendment. See id., ¶ 37 (). Appling fittingly characterizes this inquiry as a look at the “historical context surrounding ... passage” of the marriage amendment. We adopt “historical context of passage” as our shorthand for this second source.
¶ 14 The third source that might shed light on voter intent is the “earliest interpretations of the provisionby the legislature.” It is sometimes the case that legislative action expresses or assumes a...
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