October 24, 2013

"The Wisconsin Supreme Court raised the prospect Wednesday of striking down part — but not all — of a law that gives same-sex couples some of the rights of those who are married."

At yesterday's oral argument.
... Austin Nimocks, an attorney for the plaintiffs, argued domestic partnerships mirror marriages and thus aren't allowed under a 2006 amendment to the state constitution that bans gay marriage and any "legal status identical or substantially similar to marriage."....

Justice Patience Roggensack noted it is rare for the court to strike down a statute in its entirety, rather than just the parts that violate the constitution. That prompted a discussion about whether the court could take out the elements of the registry law that require people to be of the same sex and not closely related.

If the court were to go that route, gays could remain in domestic partnerships, but heterosexual couples would now get the chance to form them. Family members could also enter into them, such as a woman who took care of her sick grandmother.
I haven't seen the transcript of the argument, and I can't tell if this was merely a device to open up the analysis or a real option under consideration, but it strikes me as profoundly anti-democratic for judges to rewrite a statute like that. It would be an interesting legislative innovation to allow domestic partnerships for any 2 co-habiting individuals who would like access to government benefits as a legally recognized couple. But that ought to be something the people have had some chance to contemplate and about which to have some representation in the legislature.

I support same-sex marriage and I opposed that 2006 amendment to the state constitution, but the amendment is what it is, and it seems as though the court is confronted with a statute that probably violates that constitutional amendment. I understand the urge to resist that unpleasant conclusion, but statutory and constitutional texts need to be taken seriously.

The people who oppose same-sex marriage are cynical enough already about whether texts are interpreted fairly and whether majoritarian preferences count against elite opinion anymore.

20 comments:

gerry said...

but statutory and constitutional texts need to be taken seriously

Be sure to remind Obama of his derelictions.

Renee said...

Thanks professor.

Yeah, I'm cynical. I'm still pretty serious about family and I'm glad I never caved in. I may be in the minority, but I really do believe and value the idea behind my arguments.

I never thought of marriage as being homophobic, because my reasoning was always about the needs of a child to have a relationship with their mom and dad. All the social research on fatherless from the 90s and early 2000s just sits there. People would like to change course, but unsure which steps to take in that direction.


We should have companionship/ kinship laws in place. Differing tiers of legal statuses to reflect differing relationships. Annoyed how I may be treated, but politics is nasty and being a marriage supporter is an easy target.

Now that birth records are.more open in adoption, I think sperm/egg donation violates individuals rights to at least know who they are and to know family.

clint said...

"Family members could also enter into them, such as a woman who took care of her sick grandmother."

Holy unintended consequences, Batman!

Are lefties actually proposing to abolish the estate tax?

Of course, it would be a return to the indivisible entailed estates of Victorian England, where you had to pick a single child to "marry" to pass your home or small business to them without losing it to the tax man...

Michelle Dulak Thomson said...

It sounds like Justice Patience Roggensack (what a name!) is thinking of what William Levada (then Archbishop of San Francisco) did when the city passed a law requiring that all organizations contracting to provide services to the city offer benefits to same-sex partners of their employees if they provided benefits to married couples. The law was meant to embarrass the Catholic Church, by making it drop coverage altogether for married employees of its charities that received city funding; renounce the city funding; or else treat gay couples as they did married straight couples.

Levada's solution was to allow every employee of the Church to designate one person living in the same home as a beneficiary. It might be your wife or husband or same-sex partner; it could equally well be your grandmother or the person you're sharing your rent with.

Unsurprisingly, this move pissed a lot of people off. Pesky Catholics, going beyond what the law required and being more generous, while totally wiping out the grand rhetorical victory that was the whole point.

Ann is right, though: This sort of thing shouldn't be done by judges. For starters, if there are any government benefits involved here, the law as rewritten would impact them considerably.

cubanbob said...

Nimocks and Roggensack. I'm sorry but I just can't get passed that without laughing. Did Mel Brooks conjure them up?

n.n said...

Two or more individuals or things: human, etc. Eventually, they will understand the consequences of their inconsistent arguments. Once they go subjective, there is no return. The experiment must be fully executed.

RecChief said...

in the case of the woman taking care of her grandmother and the two forming a domestic partnership, how would the law affect Estate Law? wouldn't that open the gates for all kinds of shenanigans with the intention of getting out of paying estate taxes? Isn't the abolishment of estate taxes anathema to a certain segment of the Madison, WI population? Which constituency to choose.....hmmmm

Glen Filthie said...

The butt of the problem is that queers are no friends of freedom.

Up here in Canada the queers were the driving force behind asnine, unenforceable hate laws, attacks on the church, and demands to teach homosexual sex education to elementary schoolers.

I understand wanting to be fair to them...but a lot of these people have serious moral and ethical problems. Mind you, so do the lefties...

Sam L. said...

"The people who oppose same-sex marriage are cynical enough already about whether texts are interpreted fairly and whether majoritarian preferences count against elite opinion anymore."

With good reason.

Inga said...

Short trip from Canada to Brooklyn.

jr565 said...

The people who oppose same-sex marriage are cynical enough already about whether texts are interpreted fairly and whether majoritarian preferences count against elite opinion anymore.


You don't say.

somefeller said...

Inga, I don't think Glen is Trooper York. He isn't fat enough!

Inga said...

I don't know somefeller, have you ever seen both of them in the same room?

somefeller said...

I've never been in a room that big, Inga.

Glen Filthie said...

Alberta Crude, girls! Think of us as Texans - only richer and better looking!

As far as Brooklyn goes, no thanks! I don't like the people. If I wanted to mingle with hairy chested feminists, elderly hippies, rat faced socialists and other liberal flakes - I could do that in Tranna. They're even more stuck up than you are, LOL LOL LOL!

Think of them as New Yorkers without the BO.

Inga said...

Yup, it's Trooper York.

Herb Nowell said...

The people who oppose same-sex marriage are cynical enough already about whether texts are interpreted fairly and whether majoritarian preferences count against elite opinion anymore.

Actually, I think arguments like this are proof we're not cynical enough.

I wonder if it is even possible for us to be cynical enough.

Skeptical Voter said...

We're heading towards a regime where laws are made by elites--some of them wearing black dresses and sitting on benches, some of them sitting in Congress or State houses--for little people to obey.

As for the elites making said "laws"? Compliance is a sometimes thing--laws are for the little people, don't you know?

I'm just getting my combined cynicism/BS meter cranked up as I think about this.

Alexander said...

Man, it didn't take long at all for the left to go from shouting SLIPPERY SLOPE! FALLACY! to going ahead and pressing forward.

But of course, I'm probably just a bigot if I dare claim that this is one step closer to legalized incest. Or that once you claim any two people can form a 'domestic relationship', it's a pretty minor issue to change the number of people involved.

Kirk Parker said...

"it strikes me as profoundly anti-democratic for judges to rewrite a statute like that."

Even if there's a severability clause in the bill as passed? Don't know if there is one here, but they're common enough.