9.20.2009

The UW LBGT Community is Celebrating and the Wisconsin Constitution is Ticker-Tape.

It is so wonderful that people can celebrate the power of closed room budget deals to nullify the state constitution. I have views in favor of the full legal enfranchisement of the LBGT community, but somehow I don’t believe the LBGT minority should be gathering to celebrate how corrupt interest group driven politics playing out in a financially debilitating budget have managed to contradict the desires of the people as expressed in the 2006 binding referendum to pass a gay marriage ban.

Chapter 770 establishes a partnership registry, defines domestic partnerships, and sets up a system for the disbursement of partnership benefits as approved in the state budget.

770.001 Declaration of policy. The legislature finds that it is in the interests of the citizens of this state to establish and provide the parameters for a legal status of domestic partnership. The legislature further finds that the legal status of domestic partnership as established in this chapter is not substantially similar to that of marriage. Nothing in this chapter shall be construed as inconsistent with or a violation of article XIII, section 13, of the Wisconsin Constitution.

First, how many times is a law passed that is so controversial that it has a disclaimer that it is indeed constitutional? That kind of rhetoric begs the question is the law really constitutional?

Marriage. SECTION 13. [As created Nov. 2006] 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. [2003 J.R. 29, 2005
J.R. 30, vote Nov. 2006]

Governor Doyle and democrats in the legislature have interesting reasons why they think the partnership registry doesn’t violate the marriage amendment. UW professor of law David S. Schwartz sent a memo to Governor Doyle that is posted on the governor’s website as the main authority on the legality of the registry. Professor Schwartz argues that the words “legal status” only refer to civil unions and same-sex marriages administered by other states. Schwartz goes on to say that Wisconsin’s partnership benefits are of such a limited number and scope that domestic partnerships are not substantially similar to marriage.

“Substantially similar” is substantially vague, no doubt, but I still don’t subscribe to the notion that the purpose (at least not the main purpose) of the second sentence of the amendment is to deny recognition of same sex marriages granted in other states. Same-sex marriage is marriage, and when it comes to civil unions, “a rose by any other name is still as sweet.”

Marriage itself is a state issue per the 10th Amendment of the United States Constitution, but the extension of certain rights to certain subgroups of the population due to a common characteristic in effect excluding all other members of a population violates the 14th Amendment to the United States Constitution.

According to 770.006, one of the criteria for a domestic partnership is that “the individuals [entering the partnership] are members of the same sex. Proponents of the 14th Amendment likely didn’t envision the gay rights movement, but it seems to me that the gays are following in the footsteps of white patriarchs in trying to use their unique situation and attributes to somehow justify exclusive advantages under the law, undemocratic favoritism for particular population segments that the 14th amendment made steps to eradicate.

Violation of the state constitution aside, as Professor Schwartz alluded to: there is enough of a contrast between the partnership registry and marriage to classify domestic partnerships as a separate status. A separate, exclusionary status? Shouldn’t heterosexual couples that choose to cohabitate have shared insurance benefits, pension access, family leave, real estate transfer, and estate benefits? Wouldn’t the extension of partnership benefits to all cohabitating couples be the democratic thing to do, or is the partnership registry simply the backroom, interest group tinged, subgroup constituent appeasement act that I think it is?

If the democrats can bypass the Wisconsin majority that they still deny existed and passed the marriage amendment, and if they can appeal to the LBGT voting bloc in order increase the number of pro-democrat votes, who needs the 14th amendment to the constitution or the state constitution for that matter. After-all, constitutions only keep governments honest and democratic. In Wisconsin, we have backroom budgets.

I am for the enfranchisement of the LBGT community, but violating the state and national constitutions to do so is despicable. The University should not be celebrating. They should be taking the heat as a state organization, and I am ashamed that the University would make a mockery of the public forum by celebrating the passage of something as controversial as partnership benefits. When many of us Wisconsinites are still scratching our heads trying to figure out how we went from a constitutional amendment banning anything substantially similar to marriage from being recognized to the state budget giving the legal and fiscal basis for partnership benefits (something I argue is substantially similar to marriage) to gay couples of which at least one partner is employed by the state when just three years ago, almost 60 percent of Wisconsinites said they wanted to define marriage as between one man and one woman, I hope Chancellor Martin, the administration, faculty, and staff who found another way to get their hands on undeserved tax dollars enjoy their celebratory question and answer forum sham.

Links:

Memo to Governor Doyle from Professor Schwartz: http://www.wisgov.state.wi.us/docview.asp?docid=17476

Chapter 770: http://www.co.portage.wi.us/countyclerk/DOMESTIC_PARTNERSHIP_LAW_770.pdf

Wisconsin State Constitution: http://www.legis.state.wi.us/rsb/unannotated_wisconst.pdf

Article on the UW Q&A Forum/ LBGT Celebration: http://www.news.wisc.edu/17089