[A]s Geske pointed out, [a 1994 case rejecting "a woman's request to adopt her lesbian partner's daughter" and a 1995 case "directing a trial court to consider granting a woman some visitation rights to the biological child of her former lesbian partner"] might not speak to the chances for a successful challenge to the state's marriage statute made on constitutional grounds, since the cases turned more on questions of state law and the Legislature's intent. Plus, she said, of the judges on the court at the time, only two are left - outgoing justice Jon Wilcox and Chief Justice Shirley Abrahamson, who wrote the majority opinion in the child visitation case.
"This court has not signaled anything on that (gay marriage) issue that I know of," Geske said of the current court.
For his part, Bablitch guessed that in a hypothetical marriage law challenge, of the court's seven members, Justices Abrahamson and Ann Walsh Bradley would likely vote to throw the current law out and Wilcox, appointed by former Republican Gov. Tommy Thompson, and Justice Pat Roggensack would likely vote to uphold it.
Justice Louis Butler Jr., an appointee of Democratic Gov. Jim Doyle, might vote to throw out the law as well, Bablitch said. That would be 3-2 in favor of ending the ban on gay marriage, leaving Justice N. Patrick Crooks and Justice David Prosser Jr., another Thompson appointee, to decide which side would prevail.
Other experts like Geske said there was little to be gained by such guesswork about hypothetical cases. The issue is further clouded by the fact that Wilcox is retiring in July and this spring voters will choose between local attorney Linda Clifford or Washington County Judge Annette Ziegler to replace him.
Neither Clifford nor the sitting judges would discuss any aspect of a possible gay marriage case. Ziegler, appointed by Thompson to her current post, said through a spokesman only that if elected she would not in any case attempt "to legislate from the bench."
"That's a closely divided court," Bablitch said. "I learned long ago not to predict with complete confidence which way the court is going to go."
Any such marriage challenge would take at least a year to go through the courts, Bablitch said. That's not counting any time it might take gay-rights groups to put together a lawsuit, which took two years in the case of the New Jersey challenge, said David Buckel, who argued that case for the gay- rights group Lambda Legal.
Geske said she thought that a marriage challenge would take two to three years to make it through the Wisconsin courts. In some states, the process has taken even longer.
Geske opposes the Nov. 7 amendment proposal, she said, since she sees the possibility of unintended consequences in any constitutional proposal, and no urgent need for the measure.
"I don't think anyone can say the Supreme Court would never do that (strike down the law), but it's not imminent," she said.
Bablitch also opposes the amendment, but he disagrees with opponents who say there's no point to it.
"In terms of accuracy it is important to point out that the Supreme Court could reverse a law that's on the books," he said. "If you want to accomplish what these anti-gay (marriage) people want to accomplish, you've got to have a constitutional amendment."
October 17, 2006
The Wisconsin State Journal asks whether the Wisconsin's courts really would -- without the proposed state constitutional amendment -- override existing state law that limits marriage to opposite sex couples. This is a long piece, and you have to read quite far into it to get to the part where two former Wisconsin Supreme Court justices, Janine Geske and William Bablitch, are asked about the likelihood that the court would take the step the amendment is designed to prevent. This section of the article is also long, too long to copy in full, but the judges do not, I think, provide the kind of assurances that would undercut the argument proponents of the amendment make that it is needed to thwart some future state supreme court case finding a state law right to same-sex marriage: