Marquette University’s recent decision to grant spousal benefits to the same-sex partners of its employees may face a potential legal road block in the near future.  According to the March 29 issue of the Marquette Tribune, same-sex domestic partners are eligible for spousal benefits only if their names are recorded in a state-maintained domestic partner registry.

Wisconsin has such a registry, but it is one of questionable constitutional legitimacy.  On November 7, 2006, Wisconsin voters approved a state constitutional amendment that prohibited same sex marriages in the state as well as “a legal status identical or substantially similar to that of marriage for unmarried individuals.”   As required by the state constitution, the same amendment had previously been passed in two separate legislative sessions by both the Assembly and the State Senate.  A subsequent challenge to the legitimacy of the amendment was unanimously rejected by the Wisconsin Supreme Court in June 2010.

However, in June 2009, the Democrat-controlled Wisconsin legislature adopted a same-sex domestic partnership law that was arguably contrary to the spirit, if not the letter, of the Marriage Amendment.

The new statute (2009 WI Act 28) created a state registry for domestic partners, and in addition provided a number of “spousal”-style rights to the registered partners, including inheritance rights identical to those of a traditional opposite-sex spouse.  The bill, which was included in the state budget bill, narrowly passed the Assembly on June 13, 2009, by a vote of 50-48, and then was approved on June 19 by the Senate by an even closer 17-16 vote.  Governor Jim Doyle signed the bill on June 29, with an effective date of August 3, 2009.

Shortly after Gov. Doyle signed the bill, but before it took effect, Wisconsin Family Action filed a petition with the Wisconsin Supreme Court requesting that the high court declare that the domestic partner registry was unconstitutional under the Marriage Protection Amendment.  In Appling v. Doyle, the Supreme Court, without expressing an opinion on the merits of the case, ruled on Nov. 4, 2009, that the action had to be filed in Circuit Court.  The case is currently before the Dane County Circuit Court.

Should the litigation prove successful in invalidating the domestic partnership registry, the new Marquette benefits plan would automatically come to a halt, since registration with the state appears to be a prerequisite to receiving benefits.  It is also possible that the act could be challenged at any time in a probate proceeding involving the intestate estate of someone on the registry.  The heirs who would have inherited from the deceased, had there not been a change in the state inheritance laws, would clearly have standing to challenge the constitutionality of the act.

Moreover, there are some indications that the Walker Administration may be planning to initiate an effort to repeal the Domestic Partnership law — in late March, Gov. Walker dismissed Lester Pines, the lawyer retained by his predecessor to represent the state in defending the law.  Given the razor-thin margins by which the partnership registry law passed in 2009, the current Republican majority clearly has the power to repeal the law should it be inclined to do so.

Apparently the jury is still out on this issue.

On this morning’s Joy Cardin show on Wisconsin Public Radio, I continued my debate with Professor Esenberg over whether the collective bargaining bill has become law, and on the ongoing litigation over the effectiveness of the bill before Circuit Judge Sumi.  You can find the audio of the program here:

  http://www.wpr.org/webcasting/audioarchives_display.cfm?Code=jca

Rarely have two experienced lawyers read the same statutory language in such a diametrically opposed manner.

In an interview with Fox Cable News this morning, reporter Mike Tobin asked me if what we were seeing in Wisconsin was “lots of politics and little law.” While I began my answer in disagreement, I concluded by saying there was a sense in which he was right. The heat generated by the budget repair bill has caused people to behave in ways that are unusual and without substantial precedent.  For a profession that often relies on precedent to resolve textual ambiguities and conflicts, this creates not inconsiderable difficulty.

My own view on whether the budget repair bill is different than that offered by Professor Fallone. My best answer is that it is “probably” in effect. Here’s why.