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07/01/2010

Oil spills, war, earthquakes, poverty? Nope - it's referendum procedure that matters to God!

by Jeremy Hooper

As we mentioned yesterday, the 7-0 Wisconsin Supreme Court ruling that upheld that state's marriage amendment was entirely about whether or not the process that the anti-equality side used to amend the constitution was technically kosher. It was 100% about the civil process used, not the merits of denying/preserving equal protection under the law. Here's a portion of the opinion:

¶51 The marriage amendment contains two propositions: (1) "Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state"; and (2) "A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state." The text of this amendment and historical context in which it was adopted make its general subject and purpose plain.

¶52 A plain reading of the text of the amendment, in which both propositions expressly refer to "marriage," makes clear that the general subject of the amendment is marriage. McConkey does not seem to dispute this point.

¶53 Before the marriage amendment was adopted, marriage in Wisconsin was already limited by statute to the unions of one man and one woman. See Wis. Stat. § 765.001(2) (2005-06)[19] ("Under the laws of this state, marriage is a legal relationship between 2 equal persons, a husband and wife."); § 765.01 ("Marriage, so far as its validity at law is concerned, is a civil contract, to which the consent of the parties capable in law of contracting is essential, and which creates the legal status of husband and wife.").[20] This amendment was therefore an effort to preserve and constitutionalize the status quo, not to alter the existing character or legal status of marriage.

¶54 The first sentence preserves the one man-one woman character of marriage by so limiting marriages entered into or recognized in Wisconsin. 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."[21] We need not decide what legal statuses identical or substantially similar to marriage are prohibited by this clause in order to understand its plain and general purpose.

¶55 Why preserve the status quo through a constitutional amendment? This is no secret either. The sponsors of the amendment were quite clear that state supreme court decisions overturning the marriage laws of other states were the primary reason for the amendment.[22] In short, the sponsors of the amendment wanted to protect the current definition and legal status of marriage, and to ensure that the requirements in the first sentence could not be rendered illusory by later legislative or court action recognizing or creating identical or substantially similar legal statuses. The purpose of the marriage amendment, then, was to preserve the legal status of marriage in Wisconsin as between only one man and one woman. Both propositions in the amendment tend to effect or carry out this general purpose.[23]

¶56 To conclude, the two propositions contained in the marriage amendment plainly relate to the subject of marriage. And as the text of the amendment and context of its adoption make clear, the general purpose of the marriage amendment is to preserve the legal status of marriage in Wisconsin as between only one man and one woman. Both propositions in the marriage amendment relate to and are connected with this purpose. Therefore, the marriage amendment does not violate the separate amendment rule of Article XII, Section 1 of the Wisconsin Constitution. Rather, the marriage amendment was adopted by the people of Wisconsin using the process prescribed by the constitution, and is properly now part of our constitution.

IV. CONCLUSION

¶57 In summary, though the precise nature of McConkey's alleged injury is difficult to define, we conclude that the policy considerations underlying our standing doctrine support addressing the merits of McConkey's claim, which we therefore choose to do.

¶58 We hold that Article XIII, Section 13 of the Wisconsin Constitution——the marriage amendment——was adopted in conformity with the separate amendment rule in Article XII, Section 1 of the Wisconsin Constitution, which mandates that voters must be able to vote separately on separate amendments. Both sentences of the marriage amendment relate to marriage and tend to effect or carry out the same general purpose of preserving the legal status of marriage in Wisconsin as between only one man and one woman.
By the Court.—The judgment and order of the circuit court are Affirmed.
FULL: William C. McConkey v. J. B. Van Hollen [Wisconsin Supreme Court]

But how does the state's most prominent anti-LGBT voice see it? Well, like so:

Julaine Appling of the Wisconsin Family Council had this reaction to the ruling. "It is not a very easy thing to do in a state like Wisconsin with a Supreme Court of the nature that we have to get a 7-to-0 ruling," she observes. "So this is clearly of the Lord, and we are rejoicing in his goodness." [SOURCE]

Yes, that's right: To Julaine, this is all "the Lord's work." This, a ruling that could not more fully pertain to civil process and the technical way that citizens engage in church-separated government, is presented as an act of God. Because, you know: Heaven is actually just like a stale government office, where the minutiae of state referendum and initiative processes is of eternal concern.

Or not. Here's what we think: Not only is it deeply offensive to LGBT people to have folks like Ms. Appling acting like any court ruling that they like is an act of God while any opinion that they don't like is an act of "activist judging" -- it's also deeply offensive to the process itself! Because the matter before this court was a grown up conversation about the ways and means that amendments are presented to voters, not (in our view) the way mean implications that these amendments carry with them. To say that this procedural event was something that a benevolent godly figure spends his or her time on? Well quite honestly: That's pretty offensive to the nature of God as well!

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