Appling v. Walker

Decision Date31 July 2014
Docket NumberNo. 2011AP1572.,2011AP1572.
Citation853 N.W.2d 888,358 Wis.2d 132
PartiesJulaine K. APPLING, Jo Egelhoff, Jaren E. Hiller, Richard Kessenich and Edmund L. Webster, Plaintiffs–Appellants–Petitioners v. Scott WALKER, Kitty Rhoades and Oskar Anderson, 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.
CourtWisconsin Supreme Court

For the plaintiffs-appellants-petitioners, there were briefs by Michael D. Dean and First Freedoms Foundation Inc., Brookfield; Richard Esenberg, Mequon; David Austin Robert Nimocks, James A. Campbell, and Alliance Defending Freedom, Washington D.C., and oral argument by David Austin Robert Nimocks.

For the intervening defendants-respondents, the cause was argued by Christopher R. Clark of Lambda Legal Defense and Education Fund, Inc., Chicago; with whom on the brief was Brian Butler, Barbara Neider, and Stafford Rosenbaum LLP, Madison.

An amicus curiae brief was filed by Dyann L. Hafner, assistant corporation counsel, on behalf of Dane County.

An amicus curiae brief was filed by Donald K. Schott, Joseph T. Hanes, and Quarles & Brady LLP, Madison; Sarah L. Fowles and Quarles & Brady LLP, Milwaukee; and Laurence J. Dupuis and ACLU of Wisconsin Foundation, Inc., Milwaukee; and John A. Knight and American Civil Liberties Union Foundation, Chicago; on behalf of LGBT Chamber of Commerce, Katharine Heyning, Judith Trampf, Wendy Woodruff, Mary Woodruff, Jayne Dunnum, Robin Timm, Virgina Wolf, and Carol Schumacher.



¶ 1 Wisconsin voters amended the state constitution in 2006, adding two sentences: “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.”1 In this case we are asked to determine whether Wis. Stat. Chapter 770, by which the legislature created the legal status of domestic partnership for same-sex couples,2 violates that constitutional provision.3

¶ 2 The question is whether Plaintiffs4 have proved beyond a reasonable doubt that the same-sex domestic partnership created by Chapter 770 violates Article XIII, Section 13 of the Wisconsin Constitution. Under our precedent, intent is critical to determining what the Amendment means5 and consequently to determining whether the statute, which is accorded a presumption of constitutionality, withstands the Plaintiffs' challenge.

¶ 3 For the reasons stated herein, we affirm the court of appeals' holding that Chapter 770 is constitutional based on the presumption of constitutionality, the Plaintiffs' failure to meet the burden of proof, and the evidence we have reviewed in accord with the Dairyland decision, which establishes the framework we use to interpret constitutional provisions. Dairyland Greyhound Park, Inc. v. Doyle, 2006 WI 107, 295 Wis.2d 1, 719 N.W.2d 408.

¶ 4 Intervening Defendants6 argue that the Amendment does not bar domestic partnerships because they are not “substantially similar” to marriage, and they point to many differences, including a long list of rights of married people that are not conferred on domestic partners. It is Plaintiffs' position that what makes the domestic partnership a legal status substantially similar to that of marriage is that the similarities it shares with marriage are actually “the constituent elements that make the legally recognized marital relationship what it is—the component parts of the marital relationship....” Those elements identified by Plaintiffs in their briefs as “ constituent elements” of marriage are that it is 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.7 Plaintiffs focus on these characteristics—not the rights, duties and benefits that are associated with each status—as the “essential and material elements on which the marriage relation rests”8 and the substantial similarity that renders the domestic partnership law unconstitutional. They acknowledge that the legislature has the power to create a domestic partnership status and accord it as many rights as it wishes. They say that what the legislature cannot do is define eligibility based on marriage-like intimate relationships, and that it could avoid violating the Amendment by making such a status available to cohabiting adults, such as siblings, to remove the substantial similarity to marriage.

¶ 5 In short, they contend that it is the “existence of an exclusive, intimate relationship —clearly implicit in Chapter 770—that creates the substantially similar status” and that Chapter 770 created “the very thing that the Amendment was designed to prohibit.”

¶ 6 It is well established that challengers to a statute face a very difficult task.

A statute enjoys a presumption of constitutionality. To overcome that presumption, a party challenging a statute's constitutionality bears a heavy burden. It is insufficient for the party challenging the statute to merely establish either that the statute's constitutionality is doubtful or that the statute is probably unconstitutional. Instead, the party challenging a statute's constitutionality must “prove that the statute is unconstitutional beyond a reasonable doubt.”

State v. Smith, 2010 WI 16, ¶ 8, 323 Wis.2d 377, 780 N.W.2d 90 (citations omitted). “Furthermore, ‘every presumption must be indulged to sustain the law if at all possible and, wherever doubt exists as to a legislative enactment's constitutionality, it must be resolved in favor of constitutionality.’ Georgina G. v. Terry M., 184 Wis.2d 492, 515, 516 N.W.2d 678 (1994).

¶ 7 Such a framework for analysis has doomed many challenges, and it dooms this one as well. Like the circuit court and the court of appeals, we conclude that the Plaintiffs have not met their burden of proving beyond a reasonable doubt that the domestic partnership law is unconstitutional. Our conclusion is compelled by the presumption of constitutionality, the Plaintiffs' failure to meet the burden of proof, and the evidence we have reviewed in accord with the test set forth in the Dairyland decision.9 “The constitution means what its framers and the people approving of it have intended it to mean....”10 To determine what the framers and the voters intended a constitutional amendment to mean, based on our precedent we are to consider what is reflected in the plain language of the statute, the constitutional debates and practices of the time as exemplified during the ratification campaign that surrounded the voters' passage of the Amendment, as well as, to the extent probative, the first legislation passed following the Amendment's passage.11

¶ 8 The plain language of the Amendment prohibits only a status “identical or substantially similar to” marriage, and by implication it does not prohibit what is not identical or substantially similar thereto. There are important statutory distinctions in the way the state treats marriage and domestic partnerships and important differences in the lists of benefits and obligations that inhere in the two types of relationships.12 In light of the totality of those differences, Plaintiffs have not overcome the presumption that Chapter 770 is constitutional.

¶ 9 Our conclusion is supported by evidence from the drafting and ratification process—evidence in the drafting files13 that the framers of the Amendment intended specifically to allow legislation that provided a set of rights and benefits to same-sex couples. We are supported in our conclusion by evidence that voters were repeatedly told by Amendment proponents that the Amendment simply would not preclude a mechanism for legislative grants of certain rights to same-sex couples.14 We see no evidence that voters who approved the Amendment saw it as permitting those rights to be granted only in the kind of scheme Plaintiffs now suggest—that is, in cohabiting domestic relationships that bear no resemblance at all to marriage, with same-sex couples only as incidental beneficiaries.15 Of course the Amendment's opponents put out a different message to voters, but as the court of appeals noted, it makes sense to credit the notion, when the proponents prevail in a referendum, that theirs was the message that resonated with the majority of voters.16 Finally, our conclusion draws additional support, although limited, from the legislature's careful adoption of the first legislative act following the Marriage Amendment, adoption of Chapter 770 itself.


¶ 10 The ratification of the Marriage Amendment and the passage of the domestic partnership law occurred against a backdrop of significant social and legal shifts across the country concerning the status of same-sex couples. What happened in two states in particular is relevant because they were frequently cited by Amendment proponents in the course of the ratification process. A 2003 Massachusetts Supreme Judicial Court decision establishing the right of same- sex couples to marry in Massachusetts is widely seen as the catalyst for the subsequent developments.17 Following a similar court ruling by the Vermont Supreme Court, Vermont's legislature passed a law that created what became known as “Vermont-style civil unions,” a legal status for same sex couples that paralleled that of marriage in all respects as to state law.18 Those legal developments prompted a move among several states including Wisconsin for constitutional amendments that were intended to prevent similar judicial or legislative acts.19 In the drafting files, a legislative memo by Rep. Mark D. Gundrum, one of the lead sponsors of the Amendment, described the Amendment as necessary because “nothing in our state constitut...

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