December 1, 2007

The attack on the Wisconsin gay marriage amendment moves forward.

A Wisconsin state court has held that UW polsci prof William McConkey has standing to challenge the ban on gay marriage and civil unions that was added to the state constitution. McConkey argues that the referendum that approved the constitutional amendment violated the state constitutional provision because it contained two questions merged into one. But does McConkey have standing to bring this issue to the court?
McConkey, who described himself as a "Christian, straight, married" father of nine and grandfather of seven when he filed the lawsuit, is not directly affected by the ban on gay marriages or the ban on civil unions. But [his lawyer Lester] Pines argued that the proposed amendment violated the Wisconsin Constitution because voters had to endorse either both concepts in the question or neither, and therefore were deprived of their rights to oppose one or the other.

ADDED: Simon of Stubborn Facts looks at the complaint and makes a strong argument that the McConkey is wrong on the merits of the case.


Anonymous said...

Smart move.

This should be getting a lot of press in November 2008.

Hey, maybe even Hillary will be asked by her press guardians to declare whether she supports the gay agenda ... or not.

The Drill SGT said...

I'm Shocked simply shocked that a judge in Madison might rule to threaten the gay marriage ban. :)

I think Ann that you shoulkd describe the issue, it is pretty deep into the story.

The case claims that in outlawing both gay marriage and gay civil unions that the amendment sponsors violated the restriction that requires framing only one issue in an amendment.

I guess that If we rewrote the Declaration of Independence we'd need to avoid those complicated concepts that attempt to link 3 issues in a single document. You know the part: life, liberty, and the pursuit of happiness
totally different concepts, just like banning gay marriage and banning civil unions are so different.

/scarc off :)

The Drill SGT said...


so on the theory of the plaintiff, if the Current Wisconsin Constitution were amended, a two part statement such as found in the current Article 1, section 2, would not be allowed, because it is too complicaterd and contains multiple issues:

SECTION 2. [Slavery prohibited.] There shall be neither slavery, nor involutary servitude in this state, otherwise than for the punishment of crime, whereof the party shall have been duly convicted.

nina said...

Isn't the point that voters were forced into voting for two separate statements rather than the fact that there are plenty of constitutional provisions with multiple clauses promulgating different ideas?
I think it's such an apt argument in the case of Wisconsin's amendment! Really, not so much protective of a gay right to marry, but protective of the person who dislikes the idea of marriage but perhaps could not support the amendment because it included the clause on civil unions. Or the other way around! In any case, both sides should find this to be a coercive ballot statement. I truly do not know how Wisconsin would fare if the statements were not merged. Almost certainly, most would not vote to include civil unions in the ban. Nice job, Lester!

Ann Althouse said...

Nina's right, and I don't need to dig any deeper. I said it in the original post. The problem isn't with a 2-part amendment. It's with a 2-part question on the ballot, which is, according to the plaintiff, a violation of the state constitution. The idea seems to be that if you're going to allow amendment of the state constitution by referendum -- which is dangerous enough -- you have to be really clear about the language you're putting in front of the voters. Here, there was a real danger that people who don't want gay marriage would vote yes and not really see what else they were doing with regard to domestic partner benefits. So something pretty drastic got into the constitution. This is a basic democratic process value, and that's why the voter has standing to raise it. I think you should reconsider, drill sgt.

Ruth Anne Adams said...

UW polici prof? Italian law enforcement?

AlphaLiberal said...

And, really, when an action makes a population among us into second class citizens, we all have standing.

The marriage ban changes the nature of our society by stripping people of rights.

Let the churches set their own internal practices for the marriages they perform. Otherwise, religionists should not be forcing their personal doctrine on everyone else.

downtownlad said...

This guy is unaffected by the law. Why would he have standing?

hdhouse said...

is this why we hire lawyers like ann? to find the central issue....the guy appears right on if the judge will listen instead of be herded...i can almost hear the sheep...bahhh bahh bahh

bah ram yew
bah ram yew
to your clan, your sheep your fleece be true
fleece be true
bah ram yew

Fen said...

dtl: This guy is unaffected by the law. Why would he have standing?

/from the link:

"I believe there is a demonstrable injury to any voter who is required to vote on a question that is constitutionally defective," [Judge] Niess said. "Voting is the very bedrock, the very lifeblood of the democracy we have," and needs to be protected "above all"

Bruce Hayden said...

I am very cynical about multiple part rejections. In Colorado, that has been used to reject almost every politically incorrect amendment from the ballot, regardless of how close the two or more elements are.

The Colorado Legislature though has routinely gotten amendments, etc., on the ballot that are far, far, more complex than those from private citizens. And, yet, the same portion of the Constitution applies to both. From my point of view, a fairly egregious double standard.

Cedarford said...

Ann - I think Drill SGT has a point - perhaps not acceptable to you and others in the lawyer class that argue that only lawyers should have power over a state Constitution (The idea seems to be that if you're going to allow amendment of the state constitution by referendum -- which is dangerous enough -- you have to be really clear about the language)

OK, allowing the People, vs lawyers or lawyers dressed up in robes is dangerous? In a way that no activist berobed lawyer fresh from reading Franz Fanon's "Wretched of the Earth" and going into Court with a mindset to issue a massive sweeping consent decree with 100 separate areas of Court control over say, an election -isn't?
Lets cede you that point for sake of argument.

It seems that voters did not want gay partnership recognized by the State. Elements of which were gay marriage and civil unions.

This is exactly the argument someone could make against the Wisconsin voters and their representatives enshrining in the Wisconsin Constitution prohibition against one man legally coercing the labor of another. Drill SGT mentions it. If you are against forced labor and control of one man over another as a broad constitutional principle - you cannot just limit your Constitution to barring slavery. You must also bar indentured servitude, agencies imposing serfdom, honorifics associated with serfdom - like me declaring my rentors on an investment property may only vote as Lord Cedarford directs, must address me as Lord while stooping in courtsey to their superior.

To argue that Wisconsin voters barring slavery were not clear because it also adds indentured servitude and says forced labor is only legitimate for punishment of a crime ...and that illustrates the Danger of the People messing with what only lawyers should have power over...seems absurd. Legislation and Constitutions do not treat issues in isolation but bundle several matters together impacting a broad or narrow principle they want in the Constitution.

And in that process of legislation or preparation of referandum for direct people's vote the art of compromise comes up and says if you want to ban slavery on grounds that you oppose one man being in involuntary servitude to another, you also have to vote to ban indentured servitude for private debts or other reasons - while leaving escape clauses for the Draft or criminals put to work in jail...
Now, it might be quite possible that some people that oppose slavery deeply want serfdom, or oppose a Draft under any circumstances on libertarian grounds - but the compromises and bundling done attempt to create coherent legal policy - requires informed voters to weigh pluses and minuses needed to achieve constitutional reform of a broad principle. No forced labor, save with two exceptions.

Attempting to separate 5 elements of that antislavery package out into separate referanda is ridiculous, just as general opposition to state recognized gay partnerships with corollary benefits might require 2-3 prohibitions with 4-13 exceptions.

Basically, it is another sly attempt to usurp the will of The People on a matter where lawyer elites believe they voted the wrong way on the gay agenda. Certainly, lawyers dressed in robes are not limited to overturning or creating a single new element of Constitutional law in the sweeping decrees they indulge themselves with periodically in their decrees.

SGT Ted said...

Those stupid voters! Don't they know what's good for them?

Trumpit said...
This comment has been removed by the author.
Trumpit said...

The idea that the state constitution can be changed by a simple majority of the voters is absurd. For good reasons the U.S. Constitution is difficult to amend. This country is not supposed to be a direct democracy of the rabble. We have the initiative process in California, which is also a lousy idea. Every special interest group puts its crap on the ballot hoping the voters are too dumb to get it right at election time. They're often right about that. Half the electorate doesn't vote and who wants to be ruled by the other half? Not me.

Ann Althouse said...

"This guy is unaffected by the law. Why would he have standing?"

Because he's a voter asserting a voting right.

Cedarford said...

Trumpit - Trumpit said...
The idea that the state constitution can be changed by a simple majority of the voters is absurd. For good reasons the U.S. Constitution is difficult to amend.

The idea of any Constitution is that it should be reviewed and revised by the People regularly. Madison and Jefferson envisioned a regular process, every 20 years or so, where the successes and failures of the Constitutions were reviewed and the document was changed and updated by consent of Representatives of the People.

They had no idea that their Amending Process would be slowly dreailed by partisan politics until it reached today's level of gridlock - where the last truly meaningful Amendment was the 1962 one getting rid of poll taxes - and the only massive changes allowed are by unelected judges.

Trumpit believes the People and their Representatives cannot be trusted. They might make mistakes. Jefferson and Madison said "Let them make mistakes! So we can learn and evolve as a nation."

Right now, all too many American people have embraced the Jewish version of nationhood. That we are ruled by an elite Sanhedrin priesthood that alone can interpret ancient Holy Law given by God to the Holy Founders of Israel/America. Laws cast in stone that no mere rabble of citizenry lacking elite status can weigh in on....

When The People lose control of their destiny and their democracy to Ruling Elites - they lose ownership and commitment. Why join the military of a nation that is run by moneyed forces impervious to your suggestions? Why vote when the outcome either Party will implement is predetermined by corporate and lawyer elite's wishes?
If America ceases to become a participatory democracy, don't be surprised at the sharp drop in those willing to risk their lives for country, bothering to vote, or even the severing of community bonds if all is in the control of the New Sanhedrin caste.

It will take consensus that America is in serious decline or losing a major war before the People take the country back from the elites - perhaps with our own Cromwell and attendent bloodshed - and remake our nation and Constitution to give our People the optimum nation and Operating Manual (Constitution) of the 21st Century.

Simon said...

Re standing, perhaps I'm wrong, but most commenters are assuming that "courts" must necessarily ensure that litigants have "standing," but those aren't platonic concepts. This suit was filed in state court, and presumably the Wisconsin courts have a different (if likely quite comparable) framework for standing than do federal courts, insofar as in the latter, standing is a jurisdictional question mandated by jurisdictional limits of Article III that aren't applicable to the state courts.

Simon said...

I mean, perhaps that's too obvious to say, but it just seemed some commenters had missed the venue.

Trumpit said...
This comment has been removed by the author.
Simon said...

I can't get to the site contaning the story, which is frustrating, but Article XII § says that a "proposed amendment or amendments" will be "[submitted] to the people ... [who] shall approve and ratify such amendment or amendments by a majority of the electors voting thereon, such amendment or amendments shall become part of the constitution; provided, that if more than one amendment be submitted, they shall be submitted in such manner that the people may vote for or against such amendments separately."

It seems to me that the provision bars only the atomic submission of something like the bill of rights to voters, that is, a collection of distinct and unrelated amendments that must be voted up or down collectively. Anyone got a handy link to the Amendment being challenged?

Simon said...

I ask for a link only because what I'd thought went on the ballot ("Shall section 13 of article XIII of the [Wisconsin] constitution be
created to provide that only a marriage between one man and one woman shall be valid or recognized as a marriage in this state and that a legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state?") wouldn't seem to violate the Article XII text I just quoted.

Trumpit said...

"Trumpit believes the People and their Representatives cannot be trusted."

That, of course, is true. Especially the part about the People. They gave us 8 years of Bush. I rest my case.

Two horrible Republicans gave us the Smoot-Hawley Tariff Act in 1930, which helped plunge the world into the catastrophe know as the Great Depression. Congress passed this in spite of the fact that around 1,000 prominent economist signed a letter warning them that it was a big mistake. I don't like being ruled by narrow-minded provincial fools with big egos who think they know better than experts in the field. I think that description sums up congress, and Bush pretty well.

Trumpit said...

"Right now, all too many American people have embraced the Jewish version of nationhood."


You are a racist, foul-smelling piece of sewer sludge. What did Jews ever do to you, personally, that you hate them so? You are a sick, twisted, evil man.

Simon said...

More from me on this here. Presumably, if Wisconsin wanted to adopt an amendment that tracked the language of the (federal) Eighth Amendment, Article XII would permit the voters to approve a text saying that "will the Constitution be amendmended to provide that excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted," versus requiring three separate questions to be voted on independently, viz. "Will the Constitution be amendmended to provide that excessive bail shall not be required," "will the Constitution be amendmended to provide that excessive fines may not be imposed," and "will the Constitution be amendmended to provide that cruel and unusual punishments shall not be inflicted."

Ann Althouse said...

Simon, I don't think we're missing that. The post is very clear that it's a state court, and the opinion is on the issue of standing. Just because state courts aren't subject to Article III, the source of much, but not all, of the federal courts' standing doctrine, doesn't mean they don't find their own limitations in state law. The question is what the role of a court is, and state courts are courts.

Simon said...

Ann Althouse said...
"Simon, I don't think we're missing that."

I know you're not missing that! LOL.

TMink said...

AlphaL wrote: "The marriage ban changes the nature of our society by stripping people of rights."

What do you mean? Whose rights were stripped?

I could agree that the meaning of the word "marriage" has been stripped, but I am not sure whose rights are stripped by the amendment.


Simon said...

And I wasn't saying that standing wasn't an issue, I was only noting that the instinctive assesment of a litigant's standing under Lujan doesn't apply and that Wisconsin courts may have much looser (or indeed tighter) restrictions on who can sue for what. So - not to pick on him in particular, but for want of a clearer example - DTL's comment that the plaintiff is "unaffected by the law" assumes that injury in fact is a prerequisite to jurisdiction and then argues that it isn't met.

Simon said...

Is there an online repository of previous amendments that we can use for comparison purposes? It doesn't seem to me that there are two questions on that amendment, and if we can look at previous amendments, perhaps that'll give us some guidance. Or in the alternative, it might provide a shopping list: What other amendments might also be infirm under the same theory that this one is? What an invitation to litigation this could become!

Cedarford said...

Trumpit - You are yet another posturing elitist. Your devotion to a Sanhedrin-type elite only being permitted to interpret Holy Law to the masses betrays you. In your vehement response that saying America should not be run like Israel with only elites interpreting unchangable ancient law cast in stone dictating how all should live -is "Jew-hating".

Jews of Israel, in Jesus time lived under two shitty tyrannies. The Romans in external matters, the Sanhedrin exerting domestic tyranny over the masses in almost all aspects of the conduct of their daily lives.

If you look at to how America was created, you would see those that did the creating anticipated the People would rule, and by their representatives, regularly update and revise their "Sacred Parchment".

Arguing that the People cannot be trusted because of a long ago tariff economists still debate - now leaning to it being absolutely marginal over money supply mismanagement now thought to be the main driver of the Depression - shows just how thin your reasoning and sense of eliteness is.

Your real argument is that the masses must abide efforts by the New Sanhedrin - the Jewish and Gentile elites out to shove new law they never voted on, even voted against - like gay marriage - straight down their throats. Because if they don't, they have no respect for the "Rule of Law" those elites now control. My argument is the masses will only eat shit from such elites before they take control and fix things and make the law suit their purposes, not the Elites sole custody over matters of either Holy Mosaic/Talmudic Law or US Constitutional Law. Even if that restoration of Rule to The People must happen on the back of an Oliver Cromwell.

Gedaliya said...

The marriage ban changes the nature of our society by stripping people of rights.

When, precisely, have homosexuals had a right to "marry"? This is perhaps the silliest comment among a mountain of silly comments by our resident most angry homosexual.


Trumpit said...

Homosexual have always had the right to marry; just ask Rock Hudson.

elliot said...

I voted against this amendment.

That said, this is just a transparent attempt to reverse the outcome of the vote by legal shenanigans.

Much like the outcry about the supposed conflicts of the newest Justice on the Wisconsin Supreme Court is an attempt to invalidate her election by silencing her vote on the Court.