On Topic: Dane County judge rules state's domestic partnership law constitutional

2011-06-21T08:10:00Z 2012-12-21T17:28:06Z On Topic: Dane County judge rules state's domestic partnership law constitutionalJUDITH DAVIDOFF | The Capital Times | jdavidoff@madison.com madison.com

Dane County Judge Daniel Moeser on Monday threw out a challenge to the state's domestic partnership law and ruled the law constitutional.

Moeser wrote in his decision that the state's domestic partnership law "does not violate the Marriage Amendment because it does not create a legal status for domestic partners that is identical or substantially similar to that of marriage. The state does not recognize domestic partnership in a way that even remotely resembles how the state recognizes marriage. Moreover, domestic partners have far fewer legal rights, duties, and liabilities in comparison to the legal rights, duties, and liabilities of spouses."

Therefore, wrote Moeser, the domestic partnership law is constitutional.

Lawyers for the American Civil Liberties Union hailed the decision. "The court rightly rejected this mean-spirited and dishonest attack on gay and lesbian couples," said Larry Dupuis, the legal director of the ACLU of Wisconsin, which represented same-sex couples who were defendents in the case. "Our clients know what it's like to worry about not being able to visit a partner in the hospital or to be left with nothing when a partners dies without a will. The protections offered by the domestic partner law at least allay some of those fears."

Julaine Appling, president of Wisconsin Family Action, a conservative advocacy group, filed a lawsuit in 2009 challenging the state's domestic partnership law. She said in a news release Monday that she was not giving up the fight. "We will appeal this decision because this domestic partnership scheme is precisely the type of marriage imitation that the voters intended to prevent," she said.

Former Gov. Jim Doyle included a domestic partner registry in his 2009-11 budget. After joining the registry, same-sex couples are granted limited rights and benefits, including the right to inherit each other's assets when a partner dies and to visit each other in this hospital. After Appling filed suit, Attorney General J.B. Van Hollen refused to defend the registry. Doyle then hired private attorney Lester Pines to defend the state.

Gov. Scott Walker fired Pines in March and in late May filed court papers asking to withdraw the state's defense of the law.

Defendants in the case include Fair Wisconsin, a gay rights advocacy group, Doyle and five same-sex couples.

In his ruling, Moeser disputes Appling's contention that the domestic partner registry violates the state's constitutional ban on gay marriage, which prohibits the state from sanctioning anything "substantially similar to marriage."

"In addition to receiving the same rights as domestic partners, spouses are also granted countless additional rights, benefits, and responsibilities solely as the result of a marriage. It would take pages to list each of the state statutes that name legal rights and responsibilities that stem from a marriage." The judge did include a "non-exhaustive list of some of the rights granted to spouses but not to domestic partners." He listed 32 such rights.

Pines was confident the judge's ruling would withstand a challenge to the Court of Appeals or Wisconsin Supreme Court. "The decision by Judge Moeser is a beautiful analysis of the steps that a court has to take to analyze a piece of legislation in relationship to a constitutional amendment," Pines says. The Court of Appeals or Supreme Court would have to apply the same analysis, Pines adds. "And when one applies the analysis to the case there is only one decision that one can reach and you can see that from Judge Moeser's decision."

Katie Belanger, executive director of Fair Wisconsin, praised the ruling, calling it an exciting day for Wisconsin. "We are pleased that the Court upheld the limited protections provided by domestic partnerships because they are essential in allowing committed same-sex couples to care for each other in times of need," she said in a news release. "Domestic partnerships marked our state's first step toward full equality in nearly 30 years. Judge Moeser's decision will ensure that we can continue advancing equality for lesbian, gay, bisexual and transgender Wisconsinites in the years ahead."

And state Rep. Mark Pocan, D-Madison, who championed passage of the domestic partnership law in Doyle's budget, took it one step further: "Today, I call on Republicans to finally focus on job creation rather than divisive social policies that only result in further disenfranchising people."

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