Lower Court Asks Wisconsin Supreme Court to Decide Validity of WI's Marriage Amendment

Today. (ht/BM)

Was Wisconsin's 2006 marriage amendment properly put to the electorate? A three-judge appellate court asked the state's Supreme Court to decide the issue given its importance and novelty.

To begin, there's a standing issue that may be problematic (the UW-Oshkosh professor bringing suit is not himself gay, and thus the harm complained of is ostensibly more attenuated than if a gay individual were suing).

But I think the plaintiff could get three out of the seven justices on the Wisconsin Supreme Court to agree to hear the case (perhaps the four "conservative" justices might even take it to stop the issue cold?):

The Wisconsin Supreme Court has discretion to review the case or ask the appeals court to rule. Three or more justices would have to agree to take the case.

A ruling striking down the Wisconsin amendment would not legalize gay marriage here because state law still defines marriage as a union between husband and wife. However, it could pave the way for lawmakers to eventually allow it or advocates to file additional lawsuits seeking that right.

The referendum asked whether to rewrite the state constitution to define marriage as between one man and one woman and outlaw the state from granting a similar legal status to unmarried individuals. Nearly 60 percent of voters approved.

If the standing threshold is crossed, the crux of the legal argument apparently comes down to this provision in Article XXII, Section 1 of the Wisconsin Constitution, specifying that individual amendments or questions be put to the electorate separately:

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.

Here's the court order, via Wispolitics.