A lawsuit challenging Wisconsin’s same sex marriage ban was argued before the state Supreme Court on Tuesday. William McConke, a professor at UW Oshkosh, filed his original suit in Dane County, arguing that the 2006 marriage amendment violated the state’s single subject rule for amending the constitution. A circuit court found that McConkey had standing to challenge the amendment, but that the referendum met the single subject test. McConkey appealed the ruling, and Attorney General J.B. Van Hollen cross appealed, sending the case to the Supreme Court.
Madison attorney Lester Pines presented McConkey’s arguments before the justices. “The first section (of the amendment) relates to the definition of marriage – only a marriage between one man and one woman,” he noted. “The second section relates to something other than that, and what it relates to other than that is to restrict the rights of unmarried people.” Pines argued that in that in fact, the amendment as written had two distinct purposes: “to define marriage as between one man and one woman,” and to “restrict the legislature from providing . . . certain rights to unmarried individuals.” The definition of marriage, Pines asserted, “has nothing to do . . . with defining marriage as between man and one woman. It has to do with something else.”
But assistant attorney general Lewis Beilin argued that, were the court to side with McConkey, the job of the legislature in crafting amendments would become unworkable. “McConkey is asking the court to change the standard for compliance with the separate amendment rule, in a way that would make amending the Wisconsin Constitution extremely difficult,” Beilin said. “That is why you have never used that standard in your previous cases. The evidence is abundant, and I think that the evidence taken as a whole leads only to one conclusion, and that is that the two parts of this amendment are related to the same subject, and serve the same common general purpose.”
The amendment, approved by the voters in a statewide referendum after having passed two consecutive sessions of the legislature, states that only marriage between one man and one woman is valid in Wisconsin, and that a “legal status identical or substantially similar to that of marriage” will not be recognized. Assistant attorney general Beilin also argued that McConkey suffered no substantial harm as a result of the statewide voting, noting that McConkey said he voted no on the amendment as written, and would also have voted no to two separate ballot questions.