Did Voters Approve an Unconstitutional Amendment?

Did 59% of the state’s voters approve an unconstitutional amendment in 2006? That’s what UW-Oshkosh professor William McConkey argues in his case against the state, which will be heard by the Wisconsin Supreme Court this fall. If McConkey prevails, Article 13 of the state Constitution, which bans same-sex marriage and “substantially similar” relationships of all kinds, will be declared unconstitutional. As McConkey’s attorney Lester Pines points out in this Shepherd Q&A, while this Supreme Court decision won’t make same-sex marriage legal in Wisconsin, it could affect all referenda questions in the coming decades.

Shepherd: The McConkey case is not about the content of the amendment— whether same-sex marriage should be allowed in the state—but it’s about the wording of the referendum question that appeared on the November 2006 ballot.

Pines: That’s correct. What’s being decided is the question of whether the referendum as it was submitted to the voters violated Article 12 Section 1 of the Wisconsin Constitution, which says that if more than one amendment to the Constitution is being proposed, the amendments should be proposed separately. It is the contention of professor McConkey and many people that in fact the referendum that was submitted to the voters had two separate questions. The first question being, “Do you want to define marriage as between one man and one woman?” And the second question being, “Do you want to restrict the legislatures in the future from providing substantive, substantial legal protections for couples who are not married?”

Shepherd: Isn’t that “two sides of the same coin,” as Judge Richard Niess ruled in the circuit court?

Pines: No. I didn’t get to respond to Judge Niess when he used that phrase, but if you had questions that were two sides of the same coin, it would say, “Do you define marriage as between one man and one woman” and “Marriage is not between people of the same sex.” But the second phrase of the amendment, which is now Article 13 of the Wisconsin Constitution, is not the obverse of the first question. It is something different than the first sentence. It says marriage is between one man and one woman. It goes on to say that we don’t want the Legislature to ever consider addressing the needs of unmarried [straight and same-sex] couples, under any circumstances. That’s not the opposite of defining marriage as between one man and one woman.

Shepherd:The referendum language was passed by two sessions of the state Legislature. Didn’t this question ever come up?

Pines: It did come up. But the founders of this state were well aware of the machinations that could be engaged in by the Legislature. They were well aware of what’s called “logrolling,” which is adding something into a bill to get it passed that might not pass on its own. Basically what the Legislature did was to, in our view, ignore the strictures of [the Constitution] and they did that knowing that the definition-of-marriage question was quite popular—especially at the time that this was submitted, in 2006.

The idea behind the whole thing was that it would bring out a lot of voters to vote against Gov. Doyle. As long as they were going to do that, they might as well stick it to gay people at the same time, not only to say that they were going to define marriage but to make sure that nobody could do anything for gay and lesbian couples in the future. That’s what they did. And they did it deliberately. This isn’t a case of, “Gee, the Legislature tried so hard to get this right and they made a mistake.” No. They did this deliberately. And they knew exactly what they were doing. And because the Legislature was controlled by one party at the time, there was nothing to stop it and there was no one in that party who was willing to stand up and say, “This isn’t right and we shouldn’t do this.” There was a perceived political advantage, which blew up in their face [because Doyle beat Republican Mark Green]. But we got stuck with the amendment.

Shepherd: If you do prevail, what does that mean for same-sex marriage in the state? Could gay and lesbian couples go out and get married immediately?

Pines: If we do prevail, it means that the amendment is unconstitutional and will not be part of the Constitution. The Legislature could adopt it again and could submit it to the voters again, but it will be unconstitutional. There is already a law on the books that defines marriage as being between a husband and a wife.

Shepherd: Are you concerned about the perceived conservative tilt of the state Supreme Court?

Pines: What I think a case like this requires is very strong advocacy and advocacy that doesn’t pander, that looks at the legal issues and presents them strongly to all of the justices and doesn’t assume that there are justices who just won’t vote for you because they don’t believe in your case. I think it’s a mistake to do that.

The problem in this case is that there are very few decisions interpreting Article 12 Section 1. There are three decisions in 125 years—two upheld referenda, one didn’t. The Court of Appeals sent the case up to the Supreme Court because it said it didn’t know how to interpret these cases. So when you’re in a situation like that, basically what you’re asking the Supreme Court to do is to make law—not in the legislative sense, but to explain how [future judges should go] about doing the analysis necessary to answer the question that’s been presented.

Here the court is being asked to define and explain how one goes through the analysis to determine what the purpose of an amendment is and whether or not there is one purpose, whether or not there is one question. It’s not just a couple of us going up and saying, “Well guys, does this violate Article 12 Section 1?” It’s much more complicated than that. They’re going to have a very difficult decision to make. And it doesn’t just affect this issue. That of course is the whole deal, because this isn’t the last referendum that’s going to come before the voters on constitutional amendments. Whatever they decide in this case, it will affect how the Legislature behaves on constitutional amendments for a couple of generations. So it’s a big deal.