August 5, 2006

The official explanation of the gay marriage amendment, written by the attorney general who opposes it.

The Wisconsin State Journal reports:
Wisconsin Attorney General Peg Lautenschlager sent two ballot explanations of the gay marriage and death penalty referendums to the state Elections Board Friday, providing the plain English translation that voters will use when they weigh in on the hot-button issues in November....

[O]pponents of the proposed constitutional ban on gay marriage and civil unions praised Lautenschlager's reading of the amendment question for pointing out its uncertain effect on joint benefits for unmarried couples. Supporters said it reflected Lautenschlager's personal bias against the proposal.

State law requires Lautenschlager to produce the explanations, which matter both because they might influence voters and because they could play a role in later court decisions that involve the intent of the proposal.

"It certainly could be something that feeds into (voter) intent," said Jane Schacter, a Stanford Law School professor and former UW-Madison faculty member. "This might be one of the few things that you know voters at least in theory have access to."...

The attorney general's explanation tells voters that it would be up to courts or the Legislature to determine whether that second clause would affect so-called domestic partner benefits between same-sex and other unmarried couples.
[Julaine Appling, of the Vote Yes for Marriage coalition] said only full-fledged civil unions or "look-alike" marriages would be affected by the measure.
I agree with Lautenschlager that the language of the proposed amendment is unclear and will have to be given its final meaning by the courts. I said so here. I also think this unclarity is a reason to vote against the amendment.

Still, pointing out this unclarity in the official explanation does seem to be influenced by Lautenschlager's opposition to the amendment. But should we be more disturbed by that than we would be if Lautenschlager had favored the amendment and put Appling's assurance in the explanation? You could say that the Appling assurance would influence the courts to read the amendment narrowly, but it wouldn't guarantee that they will, so it would be at least as troubling as Lautenschlager's pointing out the unclarity. The amendment's proponents need to downplay this unclarity and minimize the creative role that will be left for the courts to play. After all, they assert that the reason we need the amendment is that the courts will be too creative. This fear of the courts is supposed to stimulate the "yes" vote, and now people like Lautenschlager are tapping into the fear of the courts to stimulate the "no" vote.

To deal with this problem, you should want to know what methodology the Wisconsin Supreme Court uses to interpret state constitutional amendments. Here is its most recent statement, from Dairyland Greyhound Park, Inc. v. Doyle -- PDF -- decided a few weeks ago:
Constitutional provisions do not become law until they are approved by the people. Voters do not have the same access to the "words" of a provision as the legislators who framed those words; and most voters are not familiar with the debates in the legislature. As a result, voters necessarily consider second-hand explanations and discussion at the time of ratification....

[O]ur traditional methodology on constitutional interpretation may be restated as follows:

1. Courts should give priority to the plain meaning of the words of a constitutional provision in the context used. Buse v. Smith, 74 Wis. 2d 550, 568, 247 N.W.2d 141 (1976). The plain meaning of the words is best discerned by understanding their obvious and ordinary meaning at the time the provision was adopted, taking into account other (especially contemporary) provisions of the constitution. See State ex rel. Bare v. Schinz, 194 Wis. 397, 403-04, 216 N.W. 509 (1927).

2. Courts may view the "historical analysis of the constitutional debates and of what practices were in existence in 1848 which the court may reasonably presume were also known to the framers of the 1848 constitution." Id. This principle permits courts to consider the debates surrounding amendments to the constitution and the circumstances at the time these amendments were adopted. We have said that courts may examine "the history of the times," meaning not only the legislative history of a provision (including word changes in the drafts of amendments) but also "the state of society at the time," with special emphasis on the "practices and usages" then in existence, so as to identify the concerns the provision sought to address. See Bd. of Educ. v. Sinclair, 65 Wis. 2d 179, 184, 222 N.W.2d 143 (1974) (quoting State ex rel. Zimmerman v. Dammann, 201 Wis. 84, 89, 228 N.W. 593 (1930)). These concerns are often illuminated by contemporary debates and explanations of the provision both inside and outside legislative chambers.

3. Courts may scrutinize the earliest interpretations of the provision by the legislature as manifested in the first laws passed following adoption of the provision. Buse, 74 Wis. 2d at 568 (citing Payne v. Racine, 217 Wis. 550, 259 N.W. 437 (1935)). Legislation that implements a constitutional provision is thought to be a fair gauge of contemporary interpretation and is entitled to great deference.
This three-part approach is repeated in many cases.

So, can you predict how the Court would interpret the amendment? Here's the text:
Only 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.
Do you know what "the obvious and ordinary meaning" of that is? Do "the debates surrounding" the amendment and "the circumstances at the time" indicate that the text applies to more than "full-fledged civil unions"?

Well, if the amendment passes with the Lautenschlager explanation in place, it would, ironically, support a broader interpretation. Lautenschlager hopes the unclarity she cites will keep people from voting yes, but if they do vote yes, opponents of gay rights will exploit her language in subsequent litigation.

I oppose the amendment, so I'd like to say that this is one more reason to vote against it, but I understand the frustration of the the proponents who don't think what Lautenschlager is doing is sufficiently neutral. And I sympathize in advance with the litigants who -- if the amendment passes -- will be tasked to explain the explanation away.


The Drill SGT said...

While I oppose Gay marriage but not civil unions, I'm going to skip that part of the discussion and just talk about process.

It would seem to me that having a political AG draft the ballot explanation opens the process up to tampering as we potentially see here. I would think that one of two alternative methods would be better.

1. Have a Judical panel draft the explanations.

2. Have the AG or a panel do something like Jury instructions, where both counsels get to suggest to the judge the various instructions and the AG can chose between alternatives.

yetanotherjohn said...

"The attorney general's explanation tells voters that it would be up to courts or the Legislature to determine whether [some] clause would affect..."

Isn't that statement true about every potential amendment that the courts/legislatures will have to determine if something can or can't be done? Is Wisconsin heading for an FDA type disclosure on amendment votes that would have to list all possible side effects? Can the attorney general be impeached, the state sued by its citizens or the AG as a private person be liable if the AG doesn't list all the possible interactions of the law in all other prospects? Is there any sort of precedence for this "warning label" in the "plain text" explanation?

My suspicion is that you could divide the voters into four camps. 1) Those that support gay marriages.
2) Those that don't support gay marriages but do support something less like a civil union.
3) Those who oppose gay marriages and the lesser civil unions
4) Those that don't care.

Those who don't care will tend not to vote and can be discarded. Based on other states votes group 3 might be in the majority, but is probably in the minority in Wisconsin. Off the 20 states that have had a vote on a similar amendment, only three have had votes lower than 2/3 (an arbitrary point where I am assuming group 3 is likely to be an outright majority). These three states are Oregon 57%, Michigan 59% and Ohio 62%. The 17 states that supported a similar amendment by 2/3 averaged 73%. The Midwest grouping of six states without Michigan or Ohio averages 72.5%. With those two states included, the Midwest averages 69.5%. So is Wisconsin more like the other states in the Midwest or more like Michigan/Ohio?

Again looking at the vote in other states would point to group1 is probably in the minority. No state has had a lower than 57% yes vote, which would normally be considered a pretty decisive majority. The average no vote is less than 29%, so a definite minority. So the swing voter is the group 2, assuming group 3 doesn’t have an outright majority. And the AG “warning” is likely to give pause to that group 2 voter.

If the amendment fails, then group 1 is likely to hail it as a victory and claim they have a voter mandate in their favor. If they are smart, group 3 would introduce a new amendment that “clears up” the question to bring group 2 back to their side. In turn, the triumphalism that I suspect group 1 would revel in would likely turn the group 2 off and make them amenable to a re-worded amendment.

If the amendment passes, then group 3 is likely to hail it as a victory. I don’t know the state of civil unions, common law marriage, etc in Wisconsin, but the second clause certainly would give a basis to raise the issue in the courts. If group 3 tries to do this (and likely there will be someone in group 3 who does), then this would open an opportunity for group 1 to offer their own amendment to say civil unions, common law marriages, etc are still valid.