Almost two years ago, Wisconsin instituted a domestic partner registry, which was immediately challenged as a violation of the state's super-DOMA. I wrote at the time that the state would have an easier time defending the registry if it had made the criteria more inclusive and less mirroring of marriage.
Well, yesterday a state trial court upheld the constitutionality of the registry in a 53 page opinion. The court gave significant weight to statements made by proponents of the state's Defense of Marriage Amendment that it would not affect domestic partner benefits. The opinion in fact quotes a statement by a plaintiff in the lawsuit during the campaign for the DOMA. Lead plaintiff Julaine Appling was quoted in a newspaper article that informed voters that the Marriage Amendment would not threaten domestic partner benefits. "It's just inflammatory rhetoric," Appling said. Appling, who is president of Wisconsin Family Action, has announced that the group will appeal the trial court's ruling.
Three years ago, the Michigan Supreme Court ruled that domestic partner benefits for public employees violated that state's DOMA in spite of the fact that DOMA proponents said before the vote that such benefits would not be disturbed.
Kudos to the Lambda Legal lawyers who handled the case and will have to continue to defend the DP registry through the appeals process. For what it's worth, I still believe a more inclusive registry would be both better policy and constitutionally unassailable.
Showing posts with label Wisconsin. Show all posts
Showing posts with label Wisconsin. Show all posts
Tuesday, June 21, 2011
Tuesday, March 29, 2011
Marquette University to offer domestic partner benefits...to those who register with the state in a registry that is the subject of court challenge.
Going on two years ago, Wisconsin adopted a domestic partner registry in spite of the fact that it has a "super-DOMA" constitutional amendment. Almost immediately, the registry was challenged as unconstitutional, as I wrote about here. Well, the past week has seen two items of related news.
The same Wisconsin governor who has been forcefully criticized for his union-busting efforts recently fired the law firm hired by the previous governor to defend the domestic partnership law. Although the Associated Press account suggested he would appoint a different attorney, it's unclear whether that would actually be a blessing. The excellent lawyers from Lambda Legal remain in the case defending the DP registry, and it is hard to imagine any lawyer appointed by the governor actually helping them in their defense.
Meanwhile, Marquette University, a Jesuit school in Wisconsin, announced last week that it will extend domestic partner benefits to those same-sex couples who register with the state. There's no reason why this private university's benefits should turn on the constitutionality of the state's DP registry, so I am sorry to see the two tied together. Schools affiliated with the Catholic Church have had various difficulties providing employee benefits to partners of their employees. But that difficulty has also produced some creativity. A few years ago, Georgetown University began offering benefits to "legally domiciled adults." A "legally domiciled adult" is someone who has lived with the employee for at least six months, is not married or related to the employee, and has a "close personal relationship," shares living expenses, and is financially interdependent. Same-sex partners qualify, but so do other relationships, including different-sex unmarried partners.
While Marquette's approach is a more explicitly pro-gay effort, Georgetown's is more consistent with "beyond marriage" values. As long as different-sex couples must marry, the unmistakable message remains that marriage is a relationship more valuable than all others. The Alternatives to Marriage Project regularly advocates for "plus one" benefits not tied to marriage. In a blog post last month I criticized Lambda for its representation in Arizona of only state employees with same-sex partners when those with different-sex partners also lost DP benefits when the state legislature undid the reform efforts of former governor Janet Napolitano.
The same Wisconsin governor who has been forcefully criticized for his union-busting efforts recently fired the law firm hired by the previous governor to defend the domestic partnership law. Although the Associated Press account suggested he would appoint a different attorney, it's unclear whether that would actually be a blessing. The excellent lawyers from Lambda Legal remain in the case defending the DP registry, and it is hard to imagine any lawyer appointed by the governor actually helping them in their defense.
Meanwhile, Marquette University, a Jesuit school in Wisconsin, announced last week that it will extend domestic partner benefits to those same-sex couples who register with the state. There's no reason why this private university's benefits should turn on the constitutionality of the state's DP registry, so I am sorry to see the two tied together. Schools affiliated with the Catholic Church have had various difficulties providing employee benefits to partners of their employees. But that difficulty has also produced some creativity. A few years ago, Georgetown University began offering benefits to "legally domiciled adults." A "legally domiciled adult" is someone who has lived with the employee for at least six months, is not married or related to the employee, and has a "close personal relationship," shares living expenses, and is financially interdependent. Same-sex partners qualify, but so do other relationships, including different-sex unmarried partners.
While Marquette's approach is a more explicitly pro-gay effort, Georgetown's is more consistent with "beyond marriage" values. As long as different-sex couples must marry, the unmistakable message remains that marriage is a relationship more valuable than all others. The Alternatives to Marriage Project regularly advocates for "plus one" benefits not tied to marriage. In a blog post last month I criticized Lambda for its representation in Arizona of only state employees with same-sex partners when those with different-sex partners also lost DP benefits when the state legislature undid the reform efforts of former governor Janet Napolitano.
Thursday, July 23, 2009
Wisconsin domestic partnership law under attack
As expected, Wisconsin Family Action is seeking to block the state's new domestic partner registry. In a suit filed today, they claim the registry violates the state's "defense of marriage" constitutional amendment.
In an earlier post, I explained that gay rights advocates could have minimized the likelihood of success of such a suit with a more inclusive law.
In an earlier post, I explained that gay rights advocates could have minimized the likelihood of success of such a suit with a more inclusive law.
Monday, July 6, 2009
Should Wisconsin have a more inclusive partner registry?
Wisconsin made history last week with the passage of its domestic partner registry because it is the first state with a "super DOMA" to take such a step. A word about "super DOMAs." These are the constitutional amendments passed by states that reject not only marriage for same-sex couples but legal protections for or recognition of unmarried couples of any sexual orientation. Because of such a DOMA, the Michigan Supreme Court ruled last year that its public employers (like the University of Michigan) could not provide domestic partner benefits.
Wisconsin's DOMA reads that "a legal status identical or substantially similiar to that of marriage for unmarried individuals shall not be valid or recognized in this state." In May, the state's Legislative Council released a memorandum determining it was "reasonable to conclude" that the proposed partner registry would not violate the constitutional amendment but that a court might determine otherwise. A court challenge is certain to follow.
The gist of the argument that the registry does not violate the state's DOMA is that so many of the consequences of marriage are not conferred by registering as domestic partners. The argument on the other side is that so many of the consequences of marriage are conferred.
But more than a mathematical formula, part of the argument will revolve around the definition of who can register. Requirements include that the couple must be members of the same-sex; may not be related closer than second cousins; must be at least 18 years old and not married or in a domestic partnership with anyone else. The extent to which these requirements look close to the criteria for marriage for different-sex couples will be a factor in determing whether the registry violates the state's DOMA. (The couple must also share a common residence, although one or both of the partners may have a additional residence).
In a previous post, I heralded Colorado's designated beneficiary registry. And Salt Lake City Ordinance 2.52.100 features prominently in my book as an example of a definition based on economic interdependence that makes sense when the benefit involved (in that case employee benefits like health insurance) should be conferred on those who are economically interdependent.
So I have to wonder why Wisconsin has set itself up for a higher likelihood of losing in the courts by pegging eligibility to criteria that look so much like eligibility for marrying. Of course I don't really have to wonder. It is the classic thinking that starts with marriage for same-sex couples and works down from that to craft a scheme that provides as many of the consequences of marriage as possible to same-sex couples who sign up for the status.
My approach is so different. I start with what all people need for economic security and emotional peace of mind and work up from there. My approach encompasses same-sex couples but goes so much beyond that to benefit more of the relationships and families that gay -- and straight -- people form. How about a free easy to use advance directive registry, so that ALL people in Wisconsin can know that their wishes will be respected if they cannot make their own medical decisions? How about allowing all patients to determine who visits them and, in an emergency, grants that privilege to close friends or to all those who live together? How about allowing anyone economically interdependent with a deceased to receive survivors' benefits or sue for wrongful death? And as for registering, how about a registry, like Colorado's, that turns those who register into each other's next of kin but doesn't base it on having a sexual relationship that mirrors marriage?
When I give book talks or lectures, someone in the audience often comments that my ideas about valuing all families seem utopian. I respond that if it seems easier to support same-sex marriage than protections for the wide range of relationships and families that people form it is because the right-wing marriage movement has set the stage of public discussion by blaming the decline of life long heterosexual marriage for all our social problems. But I say something else. In states with super DOMAs, or with a political climate that abhors granting benefits to same-sex couples, my approach isn't utopian; it's practical. I'm sorry Wisconsin didn't go that route.
And one more note. Nevada's new registry is available to both same-sex and different-sex partners. That wouldn't help with any DOMA challenge (Nevada has the usual DOMA, not the "super" one), but it does break the stranglehold that marriage has on heterosexuals. I'm sorry Wisconsin didn't go that route as well.
Wisconsin's DOMA reads that "a legal status identical or substantially similiar to that of marriage for unmarried individuals shall not be valid or recognized in this state." In May, the state's Legislative Council released a memorandum determining it was "reasonable to conclude" that the proposed partner registry would not violate the constitutional amendment but that a court might determine otherwise. A court challenge is certain to follow.
The gist of the argument that the registry does not violate the state's DOMA is that so many of the consequences of marriage are not conferred by registering as domestic partners. The argument on the other side is that so many of the consequences of marriage are conferred.
But more than a mathematical formula, part of the argument will revolve around the definition of who can register. Requirements include that the couple must be members of the same-sex; may not be related closer than second cousins; must be at least 18 years old and not married or in a domestic partnership with anyone else. The extent to which these requirements look close to the criteria for marriage for different-sex couples will be a factor in determing whether the registry violates the state's DOMA. (The couple must also share a common residence, although one or both of the partners may have a additional residence).
In a previous post, I heralded Colorado's designated beneficiary registry. And Salt Lake City Ordinance 2.52.100 features prominently in my book as an example of a definition based on economic interdependence that makes sense when the benefit involved (in that case employee benefits like health insurance) should be conferred on those who are economically interdependent.
So I have to wonder why Wisconsin has set itself up for a higher likelihood of losing in the courts by pegging eligibility to criteria that look so much like eligibility for marrying. Of course I don't really have to wonder. It is the classic thinking that starts with marriage for same-sex couples and works down from that to craft a scheme that provides as many of the consequences of marriage as possible to same-sex couples who sign up for the status.
My approach is so different. I start with what all people need for economic security and emotional peace of mind and work up from there. My approach encompasses same-sex couples but goes so much beyond that to benefit more of the relationships and families that gay -- and straight -- people form. How about a free easy to use advance directive registry, so that ALL people in Wisconsin can know that their wishes will be respected if they cannot make their own medical decisions? How about allowing all patients to determine who visits them and, in an emergency, grants that privilege to close friends or to all those who live together? How about allowing anyone economically interdependent with a deceased to receive survivors' benefits or sue for wrongful death? And as for registering, how about a registry, like Colorado's, that turns those who register into each other's next of kin but doesn't base it on having a sexual relationship that mirrors marriage?
When I give book talks or lectures, someone in the audience often comments that my ideas about valuing all families seem utopian. I respond that if it seems easier to support same-sex marriage than protections for the wide range of relationships and families that people form it is because the right-wing marriage movement has set the stage of public discussion by blaming the decline of life long heterosexual marriage for all our social problems. But I say something else. In states with super DOMAs, or with a political climate that abhors granting benefits to same-sex couples, my approach isn't utopian; it's practical. I'm sorry Wisconsin didn't go that route.
And one more note. Nevada's new registry is available to both same-sex and different-sex partners. That wouldn't help with any DOMA challenge (Nevada has the usual DOMA, not the "super" one), but it does break the stranglehold that marriage has on heterosexuals. I'm sorry Wisconsin didn't go that route as well.
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