Wis. Supreme Court upholds gay marriage ban

The Wisconsin Supreme Court upheld the state's constitutional ban on gay marriage and civil unions in a unanimous ruling Wednesday sure to disappoint gay rights activists.

The court's 7-0 ruling concluded that the constitutional amendment was properly put to voters in a statewide referendum in 2006. Justices rejected a lawsuit that claimed the amendment violated a rule limiting constitutional amendments to a single subject.

The question asked voters whether marriage should be limited to one man and one woman and whether to outlaw any "legal status identical or substantially similar" to marriage for same-sex couples. Nearly 60 percent of voters approved.

The lawsuit, filed by a voter opposed to the amendment, argued that the amendment consisted of two questions that could have reached different results had they been asked separately: whether to ban gay marriage, and whether to ban civil unions. Polling at the time showed much greater support for civil unions.

Writing for the majority, Justice Michael Gableman rejected that argument. He said both parts of the question had the same general subject: preserving the current legal definition of marriage as between one man and one woman.

"The first sentence preserves the one man-one woman character of marriage by so limiting marriages entered into or recognized in Wisconsin," Gableman wrote. "The second sentence, by its plain terms, ensures that no legislature, court or any other government entity can get around the first sentence by creating or recognizing 'a legal status identical or substantially similar to that of marriage'."

Gableman said his opinion was not a decision on whether the amendment "is good public policy or bad public policy" and should have no impact on its interpretation or application. He said decades of court precedent related to constitutional referendum questions guided his conclusion.

He said past Supreme Court decisions gave the Legislature "considerable discretion" in drafting and submitting constitutional amendments for approval. Lawmakers have to approve the referendum in two straight legislative sessions before it goes on the statewide ballot.

"The Legislature may submit multiple propositions within one proposed amendment so long as those propositions tend to effect and carry out one general purpose and are connected with one subject," Gableman said, citing earlier cases.

Attorney General J.B. Van Hollen had defended the amendment, which he called the "will of the people." He argued the voter who filed the lawsuit, William McConkey of Baileys Harbor, did not have legal standing to bring the lawsuit. Van Hollen argued McConkey suffered no injury because he would have voted "no" on both propositions.

Gableman agreed McConkey's "alleged injury is difficult to define," but said the court decided to address the merits because of the case's significance.

A Dane County judge had dismissed McConkey's lawsuit in 2008, and the court agreed to hear the case last year. The decision to uphold the amendment is not surprising since the court is widely seen as having a conservative majority following the election of Gableman in 2008.

But the unanimity of the court, which is often deeply divided on controversial matters, was striking.

The decision is the second setback for gay rights advocates in Wisconsin in one week. Last week, an appeals court ruled that a woman who raised two adopted children in a same-sex relationship for years was not a "parent" under Wisconsin law.

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