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Wisconsin Supreme Court Rejects Constitutional Challenge to Domestic Partnership Law

By D&K’s Labor & Employment Team

On July 31, 2014, the Wisconsin Supreme Court decided Julaine K. Appling, et al. v. Scott Walker, which addressed the limited issue of whether Chapter 770 of the Wisconsin Statutes, the Domestic Partnership Law, violated Art. XIII, Sec. 13 of the Wisconsin Constitution, known as the (“Marriage Amendment”). The Marriage Amendment, added to the Wisconsin Constitution in 2006, provides that “[o]nly 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.”

It is important to note several things that this case does not involve. It does not encompass a challenge to the Marriage Amendment itself, nor the issue of whether same-sex couples have the right to a legally recognized relationship identical or substantially similar to marriage. Rather, the constitutionality of the Domestic Partnership Law hinged on a finding that the legal status created under Chapter 770 is not substantially similar to the legal status of marriage.

A separate and unrelated case challenging the constitutionality of the Marriage Amendment is presently before the 7th Circuit Court of Appeals, on appeal from a decision issued by Federal District Judge Barbara B. Crabb of the Western District of Wisconsin on June 6, 2014. The decision of the 7th Circuit Court of Appeals on the constitutionality of the Marriage Amendment will not have any bearing on the Supreme Court’s decision upholding the Domestic Partnership Law.

The Court’s decision in this case is also unrelated to the U.S. Supreme Court’s decision invalidating portions of the Defense of Marriage Act (DOMA) and the Department of Labor’s initiatives at implementing that decision as it pertains to the federal Family Medical Leave Act. It also does not touch on the issue of domestic partnership benefits under the Wisconsin Family Medical Leave Act. For discussions on those subjects, see U.S. Supreme Court Rejection of Section 3 of Defense of Marriage Act (DOMA) Unleashes Tax Opportunities and Uncertainties, Court Ruling and DOL Proposal Adds Confusion to Wisconsin Same-Sex Couple Access to Federal FMLA Benefits, and Wisconsin Extends FMLA Benefits to Include Domestic Partners. This decision is limited to upholding Chapter 770 of the Wisconsin Statutes, regarding formation of domestic partnerships by filing a declaration, for the purpose of conferring certain rights and obligations.

The Domestic Partnership Law was created under the 2009 budget bill to accord certain rights to same-sex couples that meet the statutory criteria and complete a declaration. In order to form a domestic partnership, each individual must be at least 18 years of age and capable of consenting; neither can be married to another individual or already in a domestic partnership; the couple must share a common residence; they cannot be nearer in relation to each other than second cousins, whether of the whole or half blood or by adoption; and they must be of the same sex. It is important to note that Chapter 770 itself does not contain rights and obligations of domestic partners. Rather, a subset of other statutes that already applied to marriage were amended to also apply to domestic partnerships. For example, Wis. Stat. § 861.21 was amended to permit assignment of one’s home to a surviving domestic partner.

In this case, the plaintiffs filed suit arguing that the Domestic Partnership Law violated the Marriage Amendment because it creates a legal status substantially similar to marriage. The Supreme Court, in affirming the Circuit Court and Court of Appeals, found that the Domestic Partnership Law is constitutional based upon the “presumption of constitutionality,” the plaintiffs’ failure to prove unconstitutionality beyond a reasonable doubt, and application of the framework for interpreting constitutional provisions.

In support of their case, the plaintiffs’ argued that the Domestic Partnership Law conferred the same “constituent elements” as that of a marriage. However, the Court noted that there was no authority for the plaintiffs’ assertion that certain elements define a marriage. The argument that marriage involves certain defined elements was further undermined by the fact that the plaintiffs did not challenge the definition of “domestic partnership” contained in Chapter 40 of the Wisconsin Statues, as it applies to state employee benefits, which the Court found was more akin to marriage than Chapter 770.

Of important note, the definition of “domestic partnership” under Chapter 40 differs from the definition contained in Chapter 770. Under Wis. Stat. § 40.02(21d), for state employee benefit purposes, there is no requirement that two individuals in a domestic partnership be members of the same sex. However, it is a requirement for formation of a domestic partnership under Chapter 770, for purposes other than state employee benefits.

Ultimately, the Court upheld the constitutionality of Chapter 770. As a result of the Court’s decision in this case, same-sex couples may still form domestic partnerships in Wisconsin under Chapter 770 if they meet the required criteria and complete a declaration. Furthermore, regardless of what happens at the 7th Circuit Court of Appeals regarding the constitutionality of the Marriage Amendment, this decision stands.

If you have any questions or comments regarding this news, please contact your Davis & Kuelthau, s.c. attorney or the the Labor & Employment Chair, James M. Kalny, at 920.431.2223 /