October 17, 2006

Trying to predict what the state court will do with same-sex marriage.

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:
[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."


Simon said...

"Mike Tate, campaign manager of anti-amendment group Fair Wisconsin ... [sees] no strong chance that a Wisconsin court would approve gay marriage. 'It's really highly unlikely that we'd see judges go against the grain of popular opinion.'"

Given that the Supreme Court has spent the last thirty or so years ignoring the plain meaning of the Constitution in order specifically to defy popular opinion in such areas as abortion and the death penalty, and with less enthusiasm some state courts have followed (recall that Roper affirmed the Missouri Supreme Court), it is hard to take Tate's comment seriously. His statement is either naive or disingenuous, neither of which gives his argument much weight.

MadisonMan said...

Simon, your argument might ring truer with Wisconsin data. I recall few, if any, vastly unpopular decisions made by the WI Supreme Court -- 'tho I'll admit that my idea of an unpopular decision might differ from that of the rest of the state. And I'm not a legal junky. But Wisconsin's Supreme Court Justices are at least nominally answerable to the public, as they have to be re-elected every decade (I can't say I can recall when a sitting Justice lost, however).

Certainly I agree, however, that Mr. Tate is not going to come out and say that the Wisconsin Supreme Court will approve gay marriage, even if that's his view. Just like supporters of the ban aren't going to come out and say it will restrict benefits to unmarried couples, even though the wording can be read that way. I was disappointed that this aspect of the amendment hasn't been addressed, but maybe later. The local paper has been doing a fair job of presenting different viewpoints on this proposed ban.

The printed article, by the way, contained a beautiful shot of the justices sitting on the bench. What beautiful chairs and woodwork!

Ann Althouse said...

Madison Man: In response to that I'm going to put up a picture from the WI Supreme Court. In a new post.

Sloanasaurus said...

I think speculating on what the judges will do solves nothing. Everyone knows that they will do it if they want to. There is a trend in the country of Courts finding ways to discover new rights.

The gay marriage supporters are blowing this by assuming that the Courts will continue to be activist. Democracy is all about compromise. Why aren't the gay marriage supporters attempting to seek a compromise such as civil unions. They would find a lot more support.

Mathew said...

[Bablitch] said. "If you want to accomplish what these anti-gay (marriage) people want to accomplish, you've got to have a constitutional amendment."

Who threw that "(marriage)" thing in there? I'm not entirely sure that Justice Bill didn't mean exactly what he said, that it's "anti-gay" people at work here, not "anti-gay (marriage)" people.

If this were me they were quoting, I'd be pissed.

Simon said...

MadisonMan -
That is a fair point, and truth be told, I couldn't really hold up any examples where the Wisconsin Supreme Court has gone drastically off the rails, because I'm not familiar enough with what Wisconsin's Constitution says to have formed an opinion on what would or wouldn't be an improper deviation from it. But my understanding is that if you talk to someone like Judge Sykes, who is formerly a member of that Court, she will tell you that there are cases aplenty - certainly of late - where the Court has demonstrated a willingness to, shall we say, sit in the departure lounge, even if it has yet to get on the plane. In any event, I would be far from surprised - and clearly, it is only necessary that those more familiar with the Wisconsin Courts and Constitution than I might reasonably share that suspicion - to discover that the Supreme Courts of Wisconsin sees itself in less than purely formalist terms.

My only real objection with this amendment is that it does too much, insofar as it prohibits (to my understanding, at least) not only the courts from creating a right to homosexual marriage, but the legislature from doing so. That is where I get off this train. It seems to me that an amendment whose supporters ground it in preventing the usurpation of the democratic process by Judges is disrobed and revealed as a naked hostility to homosexuality by such a limitation on the legislature.

Lastly, I might add - with regard to the comment that "Wisconsin's Supreme Court Justices are at least nominally answerable to the public, as they have to be re-elected every decade" - I take a very dim view of the election of judges, to the point where I think its historical pedigree scarcely registers on the other side of the scale from the practical and theoretical concerns. The problem is not that judges are unaccountable to the people; Constitutional ajudication is not a populist enterprise. Kelo was wrongly-decided, but not because everyone hates it, any more than Brown v. Board was correctly decided just because it has become a shibboleth for members of polite society. The problem isn't a lack of democratic accountability for the judges, the problem is one of judicial theory. That problem will be solved by ensuring that an overarching theory of the law (not just any theory, mind you) is a prerequisite for an appellate judgeship, not by more frequent elections. As explained here, I think that the same concerns apply to any proposed reforms to the Federal judiciary's life tenure. I think the case is fairly strong that Judges should not serve for life (a difficult argument to make when Our Hero just celebrated twenty years on the Supreme Court), and I think the case is overwhelming that they should not be elected, so the concern is to find a solution which has the virtues of life tenure without its attendant vices.

Unknown said...

Isn't this whole debate kind of moot, since the bigoted amendment is bound to pass in November?

billybob said...

Let me get this straight - - former justice Geske thinks there is no imminent reason to pass this amendment because a court case is “two or three years” away from making it through the court system. I'm sure she would acknowledge that it takes an amendment to the constitution to protect against the court from overturning the ban on gay marriage. And I’m sure she is aware of the requirement that an amendment to the constitution needs passage in the legislature in two different sessions and passage by referendum, which would take a least 2 years. So Geske thinks we should wait until there is a court case pending and then pass the amendment only when it’s imminent? Why not just do it now? Boy, I am glad she is no longer on the court.