Julaine K. Appling v. Scott Walker

2014 WI 96

SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP1572
COMPLETE TITLE: Julaine K. Appling, Jo Egelhoff, Jaren E.
Hiller, Richard
Kessenich and Edmund L. Webster,
Plaintiffs-Appellants-Petitioners,
v.
Scott Walker, Kitty Rhoades and Oskar Anderson,
Defendants-Respondents,
Fair Wisconsin, Inc., Glenn Carlson, Michael
Childers,
Crystal Hyslop, Janice Czyscon, Kathy Flores,
Ann
Kendzierski, David Kopitzke, Paul Klawiter, Chad
Wege and
Andrew Wege,
Intervening Defendants-Respondents.

REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 345 Wis. 2d 762, 826 N.W.2d 666
(Ct. App. 2013 – Published)
PDC No.: 2013 WI App 3

OPINION FILED: July 31, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 23, 2013

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: Daniel R. Moeser

JUSTICES:
CONCURRED: ABRAHAMSON, C.J., concurs. (Opinion filed.)
ROGGENSACK, J., concurs. (Opinion filed.)
DISSENTED:
NOT PARTICIPATING:

ATTORNEYS:
For the plaintiffs-appellants-petitioners, there were
briefs by Michael D. Dean and First Freedoms Foundation Inc.,
Brookfield; Richard Esenberg, Mequon; David Austin Robert
Nimocks, James A. Campbell, and Alliance Defending Freedom,
Washington D.C., and oral argument by David Austin Robert
Nimocks.

For the intervening defendants-respondents, the cause was
argued by Christopher R. Clark of Lambda Legal Defense and
Education Fund, Inc., Chicago; with whom on the brief was Brian
Butler, Barbara Neider, and Stafford Rosenbaum LLP, Madison.

An amicus curiae brief was filed by Dyann L. Hafner,
assistant corporation counsel, on behalf of Dane County.

An amicus curiae brief was filed by Donald K. Schott,
Joseph T. Hanes, and Quarles & Brady LLP, Madison; Sarah L.
Fowles and Quarles & Brady LLP, Milwaukee; and Laurence J.
Dupuis and ACLU of Wisconsin Foundation, Inc., Milwaukee; and
John A. Knight and American Civil Liberties Union Foundation,
Chicago; on behalf of LGBT Chamber of Commerce, Katharine
Heyning, Judith Trampf, Wendy Woodruff, Mary Woodruff, Jayne
Dunnum, Robin Timm, Virgina Wolf, and Carol Schumacher.

2
2014 WI 96
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP1572
(L.C. No. 2010CV4434)

STATE OF WISCONSIN : IN SUPREME COURT

Julaine K. Appling, Jo Egelhoff, Jaren E.
Hiller, Richard Kessenich and Edmund L.
Webster,

Plaintiffs-Appellants-Petitioners

v. FILED
Scott Walker, Kitty Rhoades and Oskar Anderson,
JUL 31, 2014
Defendants-Respondents,
Diane M. Fremgen
Clerk of Supreme Court
Fair Wisconsin, Inc., Glenn Carlson, Michael
Childers, Crystal Hyslop, Janice Czyscon, Kathy
Flores, Ann Kendzierski, David Kopitzke, Paul
Klawiter, Chad Wege and Andrew Wege,

Intervening Defendants-Respondents.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 N. PATRICK CROOKS, J. Wisconsin voters amended the

state constitution in 2006, adding two sentences: "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
No. 2011AP1572

state."1 In this case we are asked to determine whether Wis.

Stat. Chapter 770, by which the legislature created the legal

status of domestic partnership for same-sex couples,2 violates

that constitutional provision.3

1
Art. XIII, Sec. 13, Wisconsin Constitution.
2
Wis. Stat. § 770.01 defines domestic partner and domestic
partnership as follows:

(1) “Domestic partner” means an individual who has
signed and filed a declaration of domestic partnership
in the office of the register of deeds of the county
in which he or she resides.

(2) “Domestic partnership” means the legal
relationship that is formed between 2 individuals
under this chapter.

To form a domestic partnership, individuals must be members of
the same sex, must not be nearer of kin to each other than
second cousins, must be at least 18 years old and capable of
consent, must share a common residence, and must not be married
to or in a domestic partnership with another person. Wis. Stat.
§ 770.05.
3
This case contains no challenge to Art. XIII, Sec. 13
itself. As the court of appeals stated, "This case is not about
whether the Wisconsin or United States Constitutions require, on
equal protection or other grounds, that same-sex couples have
the right to a legally recognized relationship that is identical
or substantially similar to marriage. To the contrary, for the
domestic partnership law to pass muster here, the 'legal status'
created by that law may not be 'substantially similar' to the
'legal status' of marriage." Appling v. Doyle, 2013 WI App 3,
¶5, 345 Wis. 2d 762, 826 N.W.2d 666.

2
No. 2011AP1572

¶2 The question is whether Plaintiffs4 have proved beyond

a reasonable doubt that the same-sex domestic partnership

created by Chapter 770 violates Article XIII, Section 13 of the

Wisconsin Constitution. Under our precedent, intent is critical

to determining what the Amendment means5 and consequently to

determining whether the statute, which is accorded a presumption

of constitutionality, withstands the Plaintiffs' challenge.

¶3 For the reasons stated herein, we affirm the court of

appeals' holding that Chapter 770 is constitutional based on the

presumption of constitutionality, the Plaintiffs' failure to

meet the burden of proof, and the evidence we have reviewed in

accord with the Dairyland decision, which establishes the

framework we use to interpret constitutional provisions.

Dairyland Greyhound Park, Inc. v. Doyle, 2006 WI 107, 295 Wis.

2d 1, 719 N.W.2d 408.

4
Julaine Appling and other named plaintiffs (collectively,
Plaintiffs) were the president and members of the board of
directors, respectively, of Wisconsin Family Action, a not-for-
profit organization that advocated publicly for the approval of
the Marriage Amendment. At the time of the ratification
process, Appling also held other positions with Family Research
Institute of Wisconsin, the Vote Yes for Marriage referendum
campaign, and the Wisconsin Coalition for Traditional Marriage.
5
State ex rel. Bare v. Schinz, 194 Wis. 397, 404, 216 N.W.
509 (1927) ("The constitution means what its framers and the
people approving of it have intended it to mean . . . . ")

3
No. 2011AP1572

¶4 Intervening Defendants6 argue that the Amendment does

not bar domestic partnerships because they are not

"substantially similar" to marriage, and they point to many

differences, including a long list of rights of married people

that are not conferred on domestic partners. It is Plaintiffs'

position that what makes the domestic partnership a legal status

substantially similar to that of marriage is that the

similarities it shares with marriage are actually "the

constituent elements that make the legally recognized marital

relationship what it is——the component parts of the marital

relationship . . . ." Those elements identified by Plaintiffs in

their briefs as "constituent elements" of marriage are that it

is 1) between two persons 2) who are over a certain age, 3) who

are competent to consent, 4) who are in an exclusive

relationship, 5) who are of specified sexes, and 6) who are not

6
Fair Wisconsin, Inc., a non-profit organization that
advocates for the civil rights of lesbian, gay, bisexual and
transgendered people, and ten individuals (collectively,
Intervening Defendants) were granted leave to intervene to
defend the constitutionality of the domestic partnership statute
after the Defendants (the governor, secretary of the Wisconsin
Department of Health Services, and the Wisconsin Registrar of
Vital Statistics) filed a motion to withdraw from the case on
the grounds that their position had changed with the new
administration and was now consistent with that of the
Plaintiffs.

As the court of appeals noted, "The Attorney General has
declined to defend the domestic partnership law and . . . the
appointed counsel for the defendants likewise declined to defend
the law. Accordingly, the task of defending the law fell solely
to the intervening defendants-respondents . . . ." Appling v.
Doyle, 345 Wis. 2d 762, ¶3 n.2.

4
No. 2011AP1572

closely related.7 Plaintiffs focus on these characteristics——not

the rights, duties and benefits that are associated with each

status——as the "essential and material elements on which the

marriage relation rests"8 and the substantial similarity that

7
See Wis. Stat. §§ 765.02, 765.03 (requirements for
persons entering into marriage) and Wis. Stat. § 770.05
(requirements for persons entering into domestic partnerships).
8
Plaintiffs have not identified any authority for the
proposition that the elements they identify are the defining
constituent elements of marriage for purposes of our
"substantially similar" analysis. The apparent source of the
phrase "constituent elements" is a citation by Plaintiffs to a
similar phrase——"essential and material elements on which the
marriage relation rests"——that appears in Varney v. Varney, an
1881 case.

There, a husband sought to void a marriage on the basis of
the alleged "fraudulent and false representations of the
respondent as to her previous character for chastity"; the court
rejected his claim, holding that "no misconception as to the
character, fortune, health, or temper, however brought about,
will support an allegation of fraud on which a dissolution of
the marriage contract, when once executed, can be obtained in a
court of justice. These are accidental qualities, which do not
constitute the essential and material elements on which the
marriage relation rests. The law, in the exercise of a wise and
sound policy, seeks to render the contract of marriage, when
once executed, as far as possible indissoluble." Varney v.
Varney, 52 Wis. 120, 123, 8 N.W. 739 (1881) (emphasis added).

Because it does not attempt to say what the essential and
material elements are, Varney does not support the proposition
that the six elements Plaintiffs identify in their brief are the
essential elements of marriage. At oral argument, Plaintiffs
appeared to narrow their focus to two characteristics that made
a status "substantially similar" to marriage: the presence of
consanguinity prohibitions and gender specificity requirements.
There was likewise no legal authority cited for the proposition
that those two characteristics constitute the essence of
marriage and that any legal status where they are present is
substantially similar to marriage. See ¶54 infra.

5
No. 2011AP1572

renders the domestic partnership law unconstitutional. They

acknowledge that the legislature has the power to create a

domestic partnership status and accord it as many rights as it

wishes. They say that what the legislature cannot do is define

eligibility based on marriage-like intimate relationships, and

that it could avoid violating the Amendment by making such a

status available to cohabiting adults, such as siblings, to

remove the substantial similarity to marriage.

¶5 In short, they contend that it is the "existence of an

exclusive, intimate relationship——clearly implicit in Chapter

770——that creates the substantially similar status" and that

Chapter 770 created "the very thing that the Amendment was

designed to prohibit."

¶6 It is well established that challengers to a statute

face a very difficult task.

A statute enjoys a presumption of constitutionality.
To overcome that presumption, a party challenging a
statute's constitutionality bears a heavy burden. It
is insufficient for the party challenging the statute
to merely establish either that the statute's
constitutionality is doubtful or that the statute is
probably unconstitutional. Instead, the party
challenging a statute's constitutionality must "prove
that the statute is unconstitutional beyond a
reasonable doubt."
State v. Smith, 2010 WI 16, ¶8, 323 Wis. 2d 377, 780 N.W.2d 90

(citations omitted). "Furthermore, 'every presumption must be

indulged to sustain the law if at all possible and, wherever

doubt exists as to a legislative enactment's constitutionality,

6
No. 2011AP1572

it must be resolved in favor of constitutionality.'" Georgina

G. v. Terry M., 184 Wis. 2d 492, 515, 516 N.W.2d 678 (1994).

¶7 Such a framework for analysis has doomed many

challenges, and it dooms this one as well. Like the circuit

court and the court of appeals, we conclude that the Plaintiffs

have not met their burden of proving beyond a reasonable doubt

that the domestic partnership law is unconstitutional. Our

conclusion is compelled by the presumption of constitutionality,

the Plaintiffs' failure to meet the burden of proof, and the

evidence we have reviewed in accord with the test set forth in

the Dairyland decision.9 "The constitution means what its

framers and the people approving of it have intended it to

mean . . . ."10 To determine what the framers and the voters

intended a constitutional amendment to mean, based on our

precedent we are to consider what is reflected in the plain

language of the statute, the constitutional debates and

practices of the time as exemplified during the ratification

campaign that surrounded the voters' passage of the Amendment,
as well as, to the extent probative, the first legislation

passed following the Amendment's passage.11

9
"[This Court] examine[s] three primary sources in
determining the meaning of a constitutional provision: the
plain meaning, the constitutional debates and practices of the
time, and the earliest interpretations of the provision by the
legislature, as manifested through the first legislative action
following adoption." Dairyland Greyhound Park, Inc. v. Doyle,
2006 WI 107, ¶19, 295 Wis. 2d 1, 719 N.W.2d 408.
10
Bare, 194 Wis. at 404.
11
Dairyland Greyhound Park, Inc., 295 Wis. 2d 1, ¶19.
7
No. 2011AP1572

¶8 The plain language of the Amendment prohibits only a

status "identical or substantially similar to" marriage, and by

implication it does not prohibit what is not identical or

substantially similar thereto. There are important statutory

distinctions in the way the state treats marriage and domestic

partnerships and important differences in the lists of benefits

and obligations that inhere in the two types of relationships.12

In light of the totality of those differences, Plaintiffs have

not overcome the presumption that Chapter 770 is constitutional.

¶9 Our conclusion is supported by evidence from the

drafting and ratification process -- evidence in the drafting

files13 that the framers of the Amendment intended specifically

to allow legislation that provided a set of rights and benefits

to same-sex couples. We are supported in our conclusion by

evidence that voters were repeatedly told by Amendment

12
See infra, ¶¶31-32.
13
For example, the drafting files contain a memorandum from
Rep. Mark D. Gundrum seeking co-sponsors in the Assembly, which
says that the proposal "would 'prevent same-sex marriages from
being legalized in this state'"; it goes on to state that the
proposal "does not prohibit the state . . . from setting up
[its] own legal construct to provide particular privileges or
benefits, such as health insurance benefits, pension benefits,
joint tax return filing, hospital visitation, etc. as those
bodies are able and deem appropriate."

The drafting file contains a press release from Rep. Scott
Suder, dated March 1, 2006, which states, "Despite what some gay
rights groups are claiming, Suder said the proposal does NOT
prohibit the state, local governments, or private businesses
from extending health insurance benefits and other privileges to
same sex couples."

8
No. 2011AP1572

proponents that the Amendment simply would not preclude a

mechanism for legislative grants of certain rights to same-sex

couples.14 We see no evidence that voters who approved the

Amendment saw it as permitting those rights to be granted only

in the kind of scheme Plaintiffs now suggest——that is, in

cohabiting domestic relationships that bear no resemblance at

all to marriage, with same-sex couples only as incidental

beneficiaries.15 Of course the Amendment's opponents put out a

different message to voters, but as the court of appeals noted,

it makes sense to credit the notion, when the proponents prevail

in a referendum, that theirs was the message that resonated with

the majority of voters.16 Finally, our conclusion draws

additional support, although limited, from the legislature's

14
E.g., an August 2006 publication from the Family Research
Institute of Wisconsin, "Questions and Answers About Wisconsin's
Marriage Protection Law," stated, "The second sentence [of the
Amendment] doesn't even prevent the state legislature from
taking up a bill that gives a limited number of benefits to
people in sexual relationships outside of marriage, should the
legislature want to do so." (Emphasis added.)
15
That argument is untenable because leaving consideration
of the associated rights and benefits out of the analysis would
mean, as the court of appeals noted, that the legislature could
constitutionally create a set of eligibility requirements that
did not resemble marriage "and then confer on that status all
the rights and obligations of marriage." Appling, 345 Wis. 2d
762, ¶31. As the court of appeals points out, "[s]uch a
scenario, permissible under [Plaintiffs'] theory, is the very
definition of marriage by another name," and that is without
question what the Amendment prohibits. Id.
16
Appling, 345 Wis. 2d 762, ¶¶47-48 (“[T]he more reasonable
and obvious conclusion is that voters who ended up favoring the
amendment were, generally speaking, persuaded by statements of
the proponents, including proponent assurances of the
amendment's effect on domestic partnerships.”).
9
No. 2011AP1572

careful adoption of the first legislative act following the

Marriage Amendment, adoption of Chapter 770 itself.

BACKGROUND

¶10 The ratification of the Marriage Amendment and the

passage of the domestic partnership law occurred against a

backdrop of significant social and legal shifts across the

country concerning the status of same-sex couples. What

happened in two states in particular is relevant because they

were frequently cited by Amendment proponents in the course of

the ratification process. A 2003 Massachusetts Supreme Judicial

Court decision establishing the right of same-sex couples to

marry in Massachusetts is widely seen as the catalyst for the

subsequent developments.17 Following a similar court ruling by

the Vermont Supreme Court, Vermont's legislature passed a law

that created what became known as "Vermont-style civil unions,"

a legal status for same sex couples that paralleled that of

17
Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941 (Mass.
2003) (establishing the right of same-sex couples to marry
in Massachusetts and giving the legislature six months to comply
with the ruling).

10
No. 2011AP1572

marriage in all respects as to state law.18 Those legal

developments prompted a move among several states including

Wisconsin for constitutional amendments that were intended to

prevent similar judicial or legislative acts.19 In the drafting

files, a legislative memo by Rep. Mark D. Gundrum, one of the

lead sponsors of the Amendment, described the Amendment as

necessary because "nothing in our state constitution presently

protects against our State Supreme Court from doing the same

thing the Massachusetts Supreme Court did in 2003 (or [the]

Vermont Supreme Court did in 1999 or the Hawaii Supreme Court

did in 1993 . . .) and legislating from the bench to radically

alter marriage in this state and judicially impose same-sex

marriage on this state."

18
Baker v. Vermont, 744 A.2d 864, 886 (Vt. 1999) (holding
that the Vermont constitution entitled gay couples in Vermont to
"the same benefits and protections afforded by Vermont law to
married opposite-sex couples."). The following year, the
Vermont legislature amended its statutes, creating what were
later referred to in Wisconsin before and during the
ratification process as "Vermont-style civil unions." Vt. Stat.
tit. 15, §§ 1201-1207 (2000); see also Appling, 345 Wis. 2d 762,
¶59. Vermont's law explicitly provided that "[p]arties to a
civil union shall have all the same benefits, protections, and
responsibilities under law . . . as are granted to spouses in a
civil marriage." Vt. Stat. tit. 15, § 1204 (2000).
19
See Amy Rinard & Steven Walters, "Court endorses gay
marriage[;] Senate Republicans vow to propose amendment banning
same-sex unions," Milwaukee Journal Sentinel, Nov. 19, 2003, at
1A (discussing the reaction in the Wisconsin Senate to the
Massachusetts ruling in Goodridge). See also Tom Heinen, "59%
oppose gay unions, survey finds[;] Poll finds most notable rise
among religious Americans," Milwaukee Journal Sentinel, Nov. 19,
2003, at 18A (discussing rising public opposition to same-sex
marriage in the wake of the Massachusetts ruling).

11
No. 2011AP1572

¶11 In McConkey v. Van Hollen, we described the passage of

the Wisconsin Marriage Amendment as follows:

During both the 2003 and 2005 sessions, the Wisconsin
State Assembly and Senate adopted a joint resolution
to amend the Wisconsin Constitution. Though the 2003
and 2005 versions contained minor procedural
variations, the text of the resolution itself was
identical. Both versions of the resolution contained
what the parties have referred to as the title: "To
create section 13 of article XIII of the constitution;
relating to: providing that only a marriage between
one man and one woman shall be valid or recognized as
a marriage in this state." The substance of the
resolution contained two sections. Section 1 stated
the text of the proposed marriage amendment. Section 2
of the resolution addressed the numbering of the new
proposed amendment.

Because the joint resolution was passed by two
successive legislatures, the amendment was submitted
to the people for ratification. Wisconsin voters were
asked the following question:

Marriage. Shall section 13 of article XIII of the
constitution be created to provide that only a
marriage between one man and one woman shall be valid
or recognized as a marriage in this state and that a
legal status identical or substantially similar to
that of marriage for unmarried individuals shall not
be valid or recognized in this state?

On November 7, 2006, Wisconsin voters approved this
amendment by a vote of 59 percent to 41 percent.
McConkey v. Van Hollen, 2010 WI 57, ¶¶ 7-8, 326 Wis. 2d 1, 783

N.W.2d 855, 858-59 (holding that there was no violation of the

"separate amendment rule," the constitution's requirement that

voters must be allowed to vote separately on separate

amendments).

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No. 2011AP1572

¶12 The subsequent passage of Chapter 770 established

domestic partnerships and conferred certain rights and

obligations:

[I]n 2009, the Wisconsin legislature created a chapter
in the Wisconsin statutes establishing domestic
partnerships as an option for same-sex couples.
Wisconsin Stat. ch. 770 contains eligibility
requirements and prescribes the manner in which such
partnerships are formed and terminated. Chapter 770
does not specify the rights and obligations of
domestic partnerships. The mechanism the legislature
chose for conferring rights and obligations was to
select a subset of rights and obligations found in
other parts of the statutes that already apply to
marriages and then indicate, in the text of those
other statutes, that they apply to domestic
partnerships. For example, Wis. Stat. § 861.21(2),
the statute assigning to a surviving spouse his or her
decedent spouse’s interest in their home, was made
applicable to domestic partnerships.

Appling v. Doyle, 2013 WI App 3, ¶7, 345 Wis. 2d 762, 826

N.W.2d 666.

PROCEDURAL HISTORY

¶13 In the circuit court, both Plaintiffs and Intervening

Defendants moved for summary judgment. The circuit court for

Dane County, Judge Daniel R. Moeser presiding, granted summary

judgment to the Intervening Defendants.

¶14 The circuit court considered evidence from the

legislative drafting files and from the ratification campaign,

during which voters heard "messages . . . similar to [those] in

the Marriage Amendment's drafting files." It quoted extensively

from those materials, citing at least a dozen publications and

13
No. 2011AP1572

statements by Amendment proponents, which it said made clear

that the repeated message to voters was that the second sentence

of the Amendment was targeted at a "legally exact replica of

marriage, but without the title" and that the Amendment was not

intended to be "about benefits." It also compiled a list of

benefits conferred by Ch. 770 and then a non-exhaustive list of

more than 30 rights conferred by marriage that are not available

to domestic partners. The circuit court rejected Plaintiffs'

arguments that the Amendment's ratification reflected voters'

intent "to further the general purpose of promoting a conjugal

model of marriage."20 Focusing on a comparison of the "legal

status" of each relationship, the circuit court concluded that

because "the state does not recognize domestic partnership in a

way that even remotely resembles how the state recognizes

marriage," and because domestic partners have "far fewer legal

rights, duties, and liabilities in comparison to . . . [those]

of spouses," the Plaintiffs had failed to carry their burden to

prove the statute unconstitutional.

¶15 The court of appeals likewise addressed what the

Amendment meant, considering the Dairyland sources, with

reference to its plain language and the explanations given to

20
See Appling, 345 Wis. 2d 762, ¶62 ("Appling explains that
the 'conjugal model' is based on the premise that marriage is
for sexual procreation and is 'child-focused.'")

14
No. 2011AP1572

voters during the ratification process about its meaning. It

concluded that while the Plaintiffs had the burden to "show

unconstitutionality beyond a reasonable doubt by persuading us

that the voters who ratified the marriage amendment intended

that it would ban the particular type of same-sex partnerships

created by the domestic partnership law," they had fallen “far

short of meeting [that] burden.” Appling, 345 Wis. 2d 762, ¶¶4,

15.

STANDARD OF REVIEW

¶16 This case comes to us on a summary judgment ruling,

and it requires us to interpret a constitutional provision and a

statute. "We do not review the circuit court's grant or denial

of summary judgment under an erroneous exercise of discretion

standard. Rather, our review is independent of the

determination rendered by the circuit court, but we apply the

same methodology." Tews v. NHI, LLC, 2010 WI 137, ¶40, 330 Wis.

2d 389, 793 N.W.2d 860 (citations omitted). We approach this in

the same manner as the court of appeals, which noted that

"[u]nder summary judgment methodology, '[i]f there is no dispute

as to the material facts or inferences, . . . summary judgment

is appropriate and we proceed to [resolve the dispute by

considering] the legal issue or issues raised by the [summary

judgment] motion.' Here there is no dispute about the facts and,

accordingly, we focus on the parties' legal disputes and the

15
No. 2011AP1572

application of law to the undisputed facts." Appling, 345 Wis.

2d 762, ¶9 (citations omitted).

¶17 The interpretation of a constitutional provision is a

question of law that we review de novo. Dairyland Greyhound

Park, Inc., 295 Wis. 2d 1, ¶16. "The constitutionality of a

statute is a question of law which we review de novo. In

reviewing the constitutionality of a statute, 'there is a strong

presumption that a legislative enactment is constitutional.'"

Georgina G., 184 Wis. 2d at 515. "The party challenging the

constitutionality of a statute 'must prove beyond a reasonable

doubt that the act is unconstitutional.'"21 Id. "Furthermore,

21
Although our decision today addresses a facial challenge
to the constitutionality of Chapter 770, we note that this
court's review of facial challenges and as applied challenges is
not identical. The burden of proof that challengers face,
beyond a reasonable doubt, is the same in both facial and as
applied constitutional challenges. See Soc'y Ins. v. Labor &
Indus. Review Comm'n, 2010 WI 68, ¶27 , 326 Wis. 2d 444, 786
N.W.2d 385; Georgina G. v. Terry M., 184 Wis. 2d 492, 515, 516
N.W.2d 678 (1994). However, the presumption of
constitutionality enjoyed by statutes, which is central to our
analysis in addressing a facial challenge, is not applicable to
our review of an as applied challenge. See Soc'y Ins., 326 Wis.
2d 444, ¶27.

In addressing the presumption of constitutionality afforded
to statutes in the context of as applied constitutional
challenges, we previously explained, "[w]hile we presume a
statute is constitutional, we do not presume that the State
applies statutes in a constitutional manner. Because the
legislature plays no part in enforcing our statutes, 'deference
to legislative acts' is not achieved by presuming that the
statute has been constitutionally applied. As such, neither the
challenger nor the enforcer of the statute face a presumption in
an as-applied challenge." Id. (internal citations omitted).

16
No. 2011AP1572

'every presumption must be indulged to sustain the law if at all

possible and, wherever doubt exists as to a legislative

enactment's constitutionality, it must be resolved in favor of

constitutionality.'" Id. (citations omitted).

ANALYSIS

¶18 Against that daunting standard, Plaintiffs have set

themselves the task of proving beyond a reasonable doubt that

Ch. 770, the domestic partnership law, is unconstitutional. We

therefore examine whether they have proved beyond a reasonable

doubt that Ch. 770 created a legal status identical to or

substantially similar to that of marriage——the kind of legal

status that the framers of the Marriage Amendment and the voters

who adopted it intended to prohibit. We begin our discussion by

identifying and applying the test that governs the analysis of

the meaning of a constitutional provision; we then consider what

legal status is given to Chapter 770 domestic partnerships and

whether that legal status is one that the Amendment was meant to

prohibit.22

22
As the court of appeals noted, "This case is not about
whether the Wisconsin or United States Constitutions require, on
equal protection or other grounds, that same-sex couples have
the right to a legally recognized relationship that is identical
or substantially similar to marriage. To the contrary, for the
domestic partnership law to pass muster here, the 'legal status'
created by that law may not be 'substantially similar' to the
'legal status' of marriage." Appling, 345 Wis. 2d 762, ¶5. In
other words, this case does not involve an attack on the
constitutional amendment, Article XIII, Section 13, itself.

17
No. 2011AP1572

I. WHAT TEST DO WE EMPLOY TO DETERMINE THE MEANING OF A
CONSTITUTIONAL PROVISION?
¶19 The purpose of construing a constitutional amendment

"is to give effect to the intent of the framers and of the

voters who adopted it." State v. Cole, 2003 WI 112, ¶10, 264

Wis. 2d 520, 665 N.W.2d 328 (citations omitted). Constitutions

should be construed "so as to promote the objects for which they

were framed and adopted." Id. "We therefore examine three

primary sources in determining the meaning of a constitutional

provision: the plain meaning, the constitutional debates and

practices of the time, and the earliest interpretations of the

provision by the legislature, as manifested through the first

legislative action following adoption." Dairyland Greyhound

Park, Inc., 295 Wis. 2d 1, ¶19 (citations omitted).

¶20 Interpreting a constitutional amendment differs from

interpreting a statute; we undertake a "more intense review" of

extrinsic evidence when interpreting a constitutional provision:

Our methodology in interpreting a constitutional
provision envisions more intense review of extrinsic
sources than our methodology in statutory
interpretation. . . .

The reasons we employ a different methodology for
constitutional interpretation are evident.
Constitutional provisions do not become law until they
are approved by the people. Voters do not have the
same access to the “words” of a provision as the
legislators who framed those words; and most voters
are not familiar with the debates in the legislature.
As a result, voters necessarily consider second-hand
explanations and discussion at the time of
ratification. In addition, the meaning of words may
evolve over time, obscuring the original meaning or
purpose of a provision. The original meaning of a
provision might be lost if courts could not resort to

18
No. 2011AP1572

extrinsic sources. Finally, interpreting a
constitutional provision is likely to have a more
lasting effect than the interpretation of a statute,
inasmuch as statutory language can be more easily
changed than constitutional language. Thus, it is
vital for court decisions to capture accurately the
essence of a constitutional provision.
Dairyland Greyhound Park, Inc., 295 Wis. 2d 1, ¶¶115-116

(Prosser, J., concurring in part and dissenting in part).

¶21 Of the three sources identified in Dairyland, the

first two prongs are the most useful under the circumstances

presented here: the plain meaning of the amendment, and the

constitutional debates and practices of the time. We apply the

third source——"the earliest interpretations of the provision by

the legislature, as manifested through the first legislative

action following adoption"——in a limited sense in a case such as

this, where the challenge is to the constitutionality of "the

first legislative action following adoption" itself. Dairyland

Greyhound Park, Inc., 295 Wis. 2d 1, ¶49. In other words, in

this case it would be potentially problematic to place

significant weight on the legislature's enactment of Chapter 770

when interpreting the Marriage Amendment because the Plaintiffs'

claim is that that first legislative action following the

19
No. 2011AP1572

Marriage Amendment, Chapter 770, violated the constitution.23 In

this context, a meaningful analysis is accomplished with an

emphasis on the plain meaning of the Amendment and the

constitutional debates and practices of the times as exemplified

during the ratification process and limited reliance on the

legislature's adoption of Chapter 770 itself.

A. WHAT IS THE PLAIN MEANING OF THE AMENDMENT?

¶22 To determine what the framers and the voters wanted

the constitutional provision to accomplish we first look at the

plain language and meaning of the amendment they ratified.

¶23 What is prohibited by the Marriage Amendment is "a

legal status identical or substantially similar to that of

marriage." Like the court of appeals, we "agree with

[Plaintiffs] that, to properly assess the plain meaning of the

term 'legal status,' that term must be viewed in context. The

issue here is not the generic meaning of 'legal status,' but

rather . . . its meaning as used in the constitutional phrase

23
Appling argued that the shift in the political makeup of
the Wisconsin legislature between the ratification of the
Amendment and the enactment of Chapter 770 means that "the
Legislature that approved Chapter 770 . . . was not a reliable
interpreter of the Marriage Amendment." The court of appeals
recognized this issue regarding the third source of Dairyland
evidence about the meaning of a constitutional provision; it
chose not to resolve the issue, partly on the grounds that
"ignor[ing] the legislature's 'earliest interpretation' of the
marriage amendment, namely the domestic partnership law" did not
affect its ultimate conclusion. Appling, 345 Wis. 2d 762, ¶72.
It noted that a finding that the legislature acted in defiance
of the constitutional amendment, as Plaintiffs essentially
suggested, "may conflict with the deference we are required to
accord the legislature." Id., ¶71.

20
No. 2011AP1572

'[a] legal status identical or substantially similar to that of

marriage.'" Appling, 345 Wis. 2d 762, ¶24. This is consistent

with a "paramount rule of constitutional construction . . . that

the intent of the provision 'is to be ascertained, not alone by

considering the words of any part of the instrument, but by

ascertaining the general purpose of the whole[.]' [W]hen the

intent of the whole is ascertained, no part is to be construed

so that the general purpose [is] thwarted . . . ." Dairyland

Greyhound Park, Inc., 295 Wis. 2d 1, ¶24 (citations omitted).

Another relevant principle here is that "language is read where

possible to give reasonable effect to every word, in order to

avoid surplusage." C. Coakley Relocation Sys., Inc. v. City of

Milwaukee, 2008 WI 68, ¶17, 310 Wis. 2d 456, 750 N.W.2d 900.

¶24 Turning to the words, then, "legal status" means "the

legal position of the individual in or with regard to the rest

of the community." State v. Duket, 90 Wis. 272, 275, 63 N.W. 83

(1895). Status is "the sum total of a person's legal rights,

duties, liabilities, and other legal relations, or any
particular group of them separately considered." Black's Law

Dictionary 1419 (7th ed. 1999). A legal right is "a right

created or recognized by law." Id. at 1323. Rights, duties and

obligations are important considerations, but a legal status

can't be fully examined without considering its eligibility and

formation requirements or constituent elements, because a legal

status cannot be fully understood without understanding who can

have it and what is necessary to obtain it.

21
No. 2011AP1572

¶25 To avoid surplusage, our analysis must also take into

account and give meaning to the choice of the word

"substantially" as a modifier of "similar." For the same

reason, we take it that the use of "substantially similar" means

that a status that is merely similar is not meant to be

prohibited. (There is no contention by any party that the

status of domestic partners is identical to that of marriage.)

¶26 The plain language of the Amendment indicates that the

framers and the voters intended to prohibit a status that gives

a domestic partner a sum total of legal rights, duties,

liabilities, and other legal relations that is more than just

similar to the sum total of a married person's legal rights,

duties, liabilities, and other legal relations.

B. WHAT INFORMATION WAS GIVEN TO VOTERS DURING THE
CONSTITUTIONAL DEBATES AND RATIFICATION PROCESS?
¶27 The second source of information the Dairyland test

directs us to consider is the content of the constitutional

debates and practices of the time as exemplified during the
ratification process. The ballot question that was presented to

voters stated a question and provided the text of the proposed

amendment:

Ballot Question: "Marriage. Shall Section 13 of
article XIII of the constitution be created to provide
that only a marriage between one man and one woman
shall be valid or recognized as a marriage in this
state and that a legal status identical or
substantially similar to that of marriage for
unmarried individuals shall not be valid or recognized
in this state?"

22
No. 2011AP1572

Text of Section: [Article XIII] Section 13. 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.

Wisconsin Blue Book 887 (2007-2008).
¶28 "This court presumes that, when informed, the citizens

of Wisconsin are familiar with the elements of the constitution

and with the laws, and that the information used to educate the

voters during the ratification campaign provides evidence of the

voters' intent." Dairyland Greyhound Park, Inc., 295 Wis. 2d 1,

¶37 (determining voter intent by examining public statements,

news accounts, polls, news articles, and letters to the editor).

¶29 We therefore examine the relevant public statements

made by the Amendment's framers and other proponents that were

intended to persuade voters during the ratification process.

During the process, the question of the effect on the rights of

same-sex couples was a matter of intense debate. A newspaper

article dated July 30, 2006, stated, "Although there's not much

dispute that the proposed constitutional amendment on marriage

in Wisconsin would bar same-sex unions, there is deep

disagreement about what the wording might mean for civil unions

and domestic-partner benefits." Stacy Forster, "Same-sex ban,

different interpretations," Milwaukee Journal Sentinel, July 30,

2006, at 1B. In one letter to the editor of the Milwaukee

Journal Sentinel, taking issue with an opponent's statements,

Rep. Mark D. Gundrum characterized opponents as "continu[ing]
the effort . . . to deceive people about the impact the man-

23
No. 2011AP1572

woman marriage constitutional amendment will have in Wisconsin"

and flatly rejected the notion that it would "seriously

jeopardize any legal protections for unmarried couples——gay or

straight." Rep. Mark D. Gundrum, "Opponents Resort to

Deception, Fear," Milwaukee Journal Sentinel, August 6, 2006, at

2J. (Emphasis added.) Proponents made numerous statements on

that issue as the following facts demonstrate.

¶30 A January 28, 2004, press release on the letterhead of

the Wisconsin Legislature by legislative sponsors who

spearheaded the effort to pass the Amendment, Rep. Mark D.

Gundrum and Sen. Scott Fitzgerald, stated:

The proposed amendment, while preserving marriage as
one man-one woman unions, would also preclude the
creation of unions which are substantially similar to
marriage. 'Creating a technical "marriage," but just
using a different name, to massage public opinion
doesn't cut it,' Gundrum said. . . . Significantly
though, the language does not prohibit the legislature
[and other entities] . . . from extending particular
benefits to same-sex partners as those legal entities
might choose to do.

(Emphasis supplied for the words "same-sex partners.")
¶31 In December 2005, Sen. Scott Fitzgerald was quoted as

follows in media accounts of legislative debates when the Senate

was preparing to vote: "The second [sentence] sets the

parameters for civil unions. Could a legislator put together a

pack of 50 specific things they would like to give to gay

couples? Yeah, they could." (Emphasis added.)

¶32 A November 2006 statement issued by the office of Sen.
Scott Fitzgerald struck back at opponents of the Amendment and

24
No. 2011AP1572

said they were "intentionally mislead[ing] the public about the

amendment." Contrary to those "misleading" representations, the

statement said,

Nothing in the proposed constitutional amendment would
affect the ability of same-sex individuals from
visiting a sick partner in the hospital or mak[ing]
medical decisions for their partners as [prescribed]
by a medical power of attorney. The non-partisan
Legislative Council has written that the proposed
amendment does not ban civil unions, only a Vermont-
style system that is simply marriage by another name.
If the amendment is approved by the voters . . . the
legislature will still be free to pass legislation
creating civil unions if it so desires.

(Emphasis added.)

¶33 An article written by Sen. Scott Fitzgerald and

published in the Wisconsin State Journal stated, "Contrary to

claims from . . . liberal activists, the proposed constitutional

amendment would not prohibit state or local governments . . .

from setting up a legal construct to provide privileges or

benefits such as health insurance benefits, pension benefits,

joint tax return filing or hospital visitation to same-sex or

unmarried couples." (Emphasis added.)

¶34 The Family Research Institute of Wisconsin, a group

that advocated for the Amendment (it defined itself as seeking

to preserve "traditional one-man/one-woman marriage in

Wisconsin"), issued a six-page publication dated August 2006,

listing 13 questions and answers about the meaning of the

Amendment. In that publication, the organization stated, "The

25
No. 2011AP1572

second sentence [of the Amendment] doesn't even prevent the

state legislature from taking up a bill that gives a limited

number of benefits to people in sexual relationships outside of

marriage, should the legislature want to do so." (Emphasis

added.)

¶35 An article authored by Julaine Appling, a named

plaintiff in this case, published Dec. 13, 2005, stated,

"Contrary to the message being consistently given by opponents

of the amendment, the second phrase does not 'ban civil unions.'

. . . Nor does this phrase threaten benefits already given to

people in domestic partnership registries by companies or local

units of government."

¶36 In an Associated Press article dated Dec. 7, 2005,

Julaine Appling was quoted as saying, "Nothing in the second

sentence prohibits [legislative grants of adoption or

inheritance rights]. Nor does it in any way affect existing

benefits given by local governments or the private sector."

J.R. Ross, "Senate approves amendment to ban gay marriage, civil

unions," Associated Press, Dec. 7, 2005.

¶37 This representative sampling of messages, publicized

by some of the most prominent and prolific advocates of the

Amendment, makes clear that in response to concerns about what

exactly the Amendment would prohibit, such advocates answered

directly that the Amendment would not preclude a legislative

26
No. 2011AP1572

decision to create a legal mechanism giving unmarried couples in

intimate relationships specific sets of rights and benefits.

The message was also clearly given that the Amendment would not

diminish rights in existing domestic partnerships. Same-sex

partners were specifically included in such answers.

C. WHAT LIGHT DOES THE LEGISLATURE'S ADOPTION OF
CHAPTER 770 SHED ON THE MEANING OF THE MARRIAGE AMENDMENT?

¶38 The third source of information used to determine the

meaning of a constitutional amendment is "the earliest

interpretations of the provision by the legislature, as

manifested through the first legislative action following

adoption." Dairyland Greyhound Park, Inc., 295 Wis. 2d 1, ¶19.

Review of legislation following a constitutional amendment has

proved particularly useful, for example, in discerning the

meaning of specific terms in a constitutional amendment. Payne

v. City of Racine, 217 Wis. 550, 259 N.W. 437, 440 (1935)

(discussing subsequent legislation to define the meaning of

"public utility" in article XI, section 3 of the Wisconsin

Constitution); State v. Beno, 116 Wis. 2d 122, 138, 341 N.W.2d

668 (1984) (adopting the court of appeals' reliance on

legislative acts to understand the meaning of "civil process" as

used in article IV, section 15 of the Wisconsin Constitution).

¶39 Analysis of the first legislation passed following the

passage of an amendment, however, provides a limited benefit in

27
No. 2011AP1572

this case where we are tasked with resolving a challenge to the

first law passed following the Marriage Amendment. We do find,

however, that the legislature's careful drafting of Chapter 770

and its legislative declaration of policy in Wis. Stat. §

770.001 provide us with additional, yet limited, support for the

proposition that the Amendment was not intended to prohibit the

kind of domestic partnership created by Chapter 770.

¶40 During the drafting process, proponents of Chapter 770

carefully considered whether Chapter 770 would conflict with the

Marriage Amendment. In doing so, proponents of Chapter 770

sought and received legal opinions and analysis considering

possible conflicts between Chapter 770 and the Marriage

Amendment. For example, members of the legislature and the

governor considered legal opinions from the Wisconsin

Legislative Council's Chief of Legal Services, Don Dyke, and

University of Wisconsin Law School Professor David Schwartz,

both of whom concluded that Chapter 770 did not violate the

Marriage Amendment. After careful consideration during the

drafting process, the legislature then chose to begin Chapter

770 with a declaration of policy. This declaration of policy,

in part, states, "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

28
No. 2011AP1572

the Wisconsin Constitution." In considering the third source

from Dairyland, the legislature's careful consideration of the

intersection of Chapter 770 and the Amendment along with its

subsequent declaration of policy provide additional, but not

dispositive, support for our conclusion today.

II. WHAT KIND OF LEGAL STATUS DOES CHAPTER 770 CREATE?

¶41 Having set out the relevant evidence from the

Dairyland factors, we now look at what kind of legal status Wis.

Stat. Ch. 770 created.

¶42 We therefore look at what legal position a person in a

domestic partnership is in "with regard to the rest of the

community," Duket, 90 Wis. at 275, what rights and benefits

there are that the law recognizes such status as having, who can

have that legal status, and what is necessary to obtain it.

This part of the discussion is fairly straightforward: the

definitions of legal status at issue are standard ones well

known to the law and involve little more than a review of

undisputed and uncontroversial facts about the statutory

provisions concerning domestic partnerships and the statutory

provisions concerning marriage.

¶43 Wisconsin Stat. § 770.01 defines "domestic

partnership" as "the legal relationship that is formed between 2

individuals under this chapter." The declaration of policy at

the beginning of Chapter 770 states simply, "The legislature

29
No. 2011AP1572

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."24 Wis. Stat. § 770.001. It does not identify the

legal status as a contractual relationship.25 It does not impose

a mutual and equal obligation upon the partners.26

¶44 Chapter 770 does not impose the same obligations on

domestic partners as Wisconsin law imposes on married couples
24
Compare Wis. Stat. § 765.001, discussing the legislative
intent of marriage laws, which states in part, "Marriage is the
institution that is the foundation of the family and of society.
Its stability is basic to morality and civilization, and of
vital interest to society and the state."
25
Compare Wis. Stat. § 765.001, the legislative policy
statement regarding marriage laws, which states in part: "The
consequences of the marriage contract are more significant to
society than those of other contracts, and the public interest
must be taken into account always. . . . The impairment or
dissolution of the marriage relation generally results in injury
to the public wholly apart from the effect upon the parties
immediately concerned.
26
Compare Wis. Stat. § 765.001, which states in part,
"Under the laws of this state, marriage is a legal relationship
between 2 equal persons, a husband and wife, who owe to each
other mutual responsibility and support. Each spouse has an
equal obligation in accordance with his or her ability to
contribute money or services or both which are necessary for the
adequate support and maintenance of his or her minor children
and of the other spouse." (Emphasis added.)

30
No. 2011AP1572

under Wis. Stat. ch. 765 and elsewhere. Marriage is unique in

that it is an enforceable contract to which the state is a

party. See Fricke v. Fricke, 257 Wis. 124, 126, 42 N.W.2d 500,

501 (1950) ("There are three parties to a marriage contract—the

husband, the wife, and the state."). Marriage carries with it

an "equal obligation" that spouses "owe to each other mutual

responsibility and support." Wis. Stat. § 765.001(2). Once a

couple is married, "the law steps in and holds the parties to

various obligations and liabilities." Maynard v. Hill, 125 U.S.

190, 211 (1888).

¶45 Chapter 770 makes no similar demand on domestic

partners. Chapter 770 does not refer to a domestic partnership

as a contract; it does not obligate domestic partners to satisfy

a duty of "mutual responsibility and support." While the

Plaintiffs argue that this obligation can be read into ch. 770

from the co-habitation requirement, this argument is not

persuasive given the specificity with which the legislature has

chosen to articulate spousal obligations under Wis. Stat. Ch.

765 and elsewhere.

¶46 As we noted previously, Wis. Stat. § 770.05 sets forth

the criteria for establishing a domestic partnership as follows:

(1) Each individual is at least 18 years old and
capable of consenting to the domestic partnership.

(2) Neither individual is married to, or in a domestic
partnership with, another individual.

31
No. 2011AP1572

(3) The 2 individuals share a common residence.
. . .

(4) The 2 individuals are not nearer of kin to each
other than 2nd cousins, whether of the whole or half
blood or by adoption.

(5) The individuals are members of the same sex.
¶47 Terminating a domestic partnership does not require

state approval, nor does it require the approval or consent of

the second partner, and it can be dissolved automatically if

either partner marries.27

¶48 The rights conferred are not listed in Chapter
770; rather, other statutes have been amended to add
domestic partners to those whose rights are protected
in various ways in specific contexts. As the court of
appeals noted in its decision, The mechanism the
legislature chose for conferring rights and

27
Wis. Stat. § 770.12 states:

(1)(a) A domestic partner may terminate the domestic
partnership by filing a completed notice of termination of
domestic partnership form with the county clerk who issued the
declaration of domestic partnership and paying the fee under s.
770.17. The notice must be signed by one or both domestic
partners and notarized.

. . .

(4)(a) Except as provided in par. (b), the termination of a
domestic partnership is effective 90 days after the certificate
of termination of domestic partnership is recorded under sub.
(3).

(b) If a party to a domestic partnership enters into a
marriage that is recognized as valid in this state, the domestic
partnership is automatically terminated on the date of the
marriage.

32
No. 2011AP1572

obligations was to select a subset of rights and
obligations found in other parts of the statutes that
already apply to marriages and then indicate, in the
text of those other statutes, that they apply to
domestic partnerships. For example, Wis. Stat.
§ 861.21(2), the statute assigning to a surviving
spouse his or her decedent spouse's interest in their
home, was made applicable to domestic partnerships.

Appling, 345 Wis. 2d 762, ¶7. Statutes that were amended

include those governing victim notification (e.g., Wis.

Stat. § 301.38(1)(a)), administration and transfer of a

deceased individual's estate (Wis. Stat §§ 852.09, 861.33),

health care records (Wis. Stat. § 146.81.(5)), power of

attorney for health care (Wis. Stat. § 155.05), and family

and medical leave (Wis. Stat. § 103.10). The circuit

court's decision noted that domestic partners are not

included in other statutes granting specific rights to

spouses; it listed a sampling of statutes granting rights,

both large and small, accorded to spouses only. Domestic

partners, for example, do not have the marital property

rights spelled out in Wis. Stat. Chapter 766. They also

are not permitted to obtain joint fishing licenses (Wis.

Stat. 29.219(4)).

¶49 Other jurisdictions treat Wisconsin citizens in

Chapter 770 domestic partnerships differently than they treat

Wisconsin citizens in marriages. The court of appeals observed

that "[a]lthough Wisconsin recognizes marriages formed in other

33
No. 2011AP1572

jurisdictions, and Wisconsin marriages are likewise recognized

in other jurisdictions, the same cannot be said of domestic

partnerships. . . . When it comes to cross-jurisdictional

recognition, marriages and domestic partnerships bear no

resemblance." 345 Wis. 2d 762, ¶37.

¶50 That is underscored by the fact that domestic

partnerships are not treated as equivalent to marriage, even

where the federal government recognizes marriage without

limiting it by gender. For example, some federal agencies now

extend federal benefits to spouses in same-sex marriages as well

as opposite-sex marriages (following the United States Supreme

Court's ruling in United States v. Windsor, 133 S. Ct. 2675

(2013), which struck down one provision of the federal Defense

of Marriage Act, 1 U.S.C. § 7). The Internal Revenue Service

now recognizes marriages regardless of the gender of the spouses

for tax filing purposes. See Rev. Rul. 2013-17, 2013-38 I.R.B.

201. (“For Federal tax purposes, the Service adopts a general

rule recognizing a marriage of same-sex individuals that was

validly entered into in a state whose laws authorize the

marriage of two individuals of the same sex even if the married

couple is domiciled in a state that does not recognize the

validity of same-sex marriages.”). But it does not recognize for

tax-related purposes state-recognized domestic partnerships or

their equivalents. See id. ("For Federal tax purposes, the term

34
No. 2011AP1572

'marriage' does not include registered domestic partnerships,

civil unions, or other similar formal relationships recognized

under state law that are not denominated as a marriage under

that state's law, and the terms 'spouse,' 'husband and wife,'

'husband,' and 'wife' do not include individuals who have

entered into such a formal relationship.").

III. IS THIS THE KIND OF LEGAL STATUS THE MARRIAGE AMENDMENT
WAS MEANT TO PROHIBIT?
¶51 Having set out the parameters of the legal status of

domestic partnerships, we now arrive at the crux of the matter:

have the Plaintiffs carried their burden to show beyond a

reasonable doubt that the domestic partnership law violates

Article XIII, Section 13 of the Wisconsin Constitution?

¶52 Keeping as our reference point the intent of the

framers and the voters, we turn to that specific question. As

we have noted, the plain language of the Amendment prohibits a

legal status "identical or substantially similar to that of

marriage." The public statements by proponents of the Amendment

in the public debates leading up to ratification repeatedly

emphasized the message that it would not prohibit anything other

than something that was "marriage by another name." Thus, the

plain meaning of "substantially similar" was defined for voters

as something much more than similarities created by same-sex

couples' obtaining a specified amount of rights. For example,

as we noted previously, in a press release dated Nov. 2, 2006,
Sen. Scott Fitzgerald issued a statement quoting "the non-

35
No. 2011AP1572

partisan Legislative Council" as writing that "the proposed

amendment does not ban civil unions, only a Vermont-style system

that is simply marriage by another name." (Emphasis added.)

Without the further qualifications now advanced by the

Plaintiffs, he gave to the voters he hoped to persuade the

simple message that "only" the all-rights-included Vermont-style

scheme would be prohibited.

¶53 Plaintiffs now argue that what makes the Vermont-style

civil unions similar to the status in Chapter 770 is the nature

of the relationships, not the rights conferred on them, and they

argue that it is the intimate nature of the relationship

"implicit in Ch. 770" that offends the constitutional provision

by mirroring marriage.28 They aver that when they told voters

that the Amendment would not stop the legislature from creating

a mechanism to grant rights to non-married same-sex couples,

what they meant was a kind of domestic partnership that would

include "two brothers who live together and share household

expenses, or a young woman who lives with and helps care for her

28
At oral argument before this court, Plaintiffs asserted
that their argument had not changed, that this interpretation
had been the same all through the ratification process, and that
when proponents asserted that Vermont-style civil unions would
not be permitted by the Amendment, voters would have understood
that Chapter 770-style domestic partnerships would not either
because both impermissibly mirror marriage as intimate domestic
relationships.

36
No. 2011AP1572

widowed grandfather."29 However, the statements quoted herein

make it clear that during the constitutional ratification

process, proponents explicitly mentioned same-sex intimate

relationships when voters raised questions about what kind of

relationship might legally be recognized if it passed. We have

found no evidence in the record that proponents made the

arguments to voters that they now say voters endorsed regarding

Vermont-style unions, constituent elements of marriage, and

consanguinity prohibitions and sex-specificity requirements.

Adopting Plaintiffs' position would require us to believe that

when voters heard the Marriage Amendment proponents, including

its legislative sponsors, make public statements that the

legislature could choose to bundle certain rights and give them

to same-sex couples in civil unions, voters understood the

unspoken remainder of that sentence to be "as long as those

rights are not solely extended to same-sex couples but also

extended to other pairs of people in domestic settings without

29
It would theoretically be possible to sever portions of
the statute if that portion rendered it unconstitutional. See,
e.g., State v. Hezzie R., 220 Wis. 2d 360, 580 N.W.2d 660
(1998). We note, however, that the statute itself contains no
severability clause, and though there was a suggestion at oral
argument that severing certain requirements in Chapter 770 might
eliminate what Plaintiffs considered its impermissible
substantial similarities to marriage, the argument is not
sufficiently developed to make that a reasonable approach to be
considered in this case.

37
No. 2011AP1572

regard to kinship or gender, such as siblings, grandparents and

grandchildren, and opposite-sex couples."30

¶54 Plaintiffs' position cannot be squared at all with

proponents' pre-ratification statements about non-marital sexual

relationships and civil unions. To follow Plaintiffs' logic,

dropping the "specified gender" requirement would make Chapter

770 less similar to the constituent elements of marriage, but

obviously dropping the requirement of a particular gender from

Ch. 770 would make the status available to opposite-gender

couples and consequently produce domestic partnerships that

30
While plaintiffs identified six elements as "constituent
elements" of marriage in their brief, that argument changed
somewhat in oral argument before this court. When asked by
Justice Gableman for an example of a legal status that would be
"not substantially similar" under Plaintiffs' reading of the
Amendment, counsel gave the example of reciprocal beneficiary
agreement which was described as follows:

[It] has an age restriction–you're age 18–it does not
have a sex specificity or a consanguinity requirement–
that you're of competency to contract–and you are not
in a marriage or other domestic legal status. That's
it–those are the requirements. That's something that
would encompass the examples that we mentioned in our
brief, of a granddaughter living with a grandfather,
or two sisters.

Of course, that legal status, as described, has four of the
six "constituent elements," and is missing only the sex
specificity requirement and consanguinity prohibition.
When asked in a follow-up question whether it was accurate
to state that the Plaintiffs' constitutional argument was
concerned solely with the identified constituent elements
and was unconcerned with the size of the "bundle of
benefits and obligations" conferred on a legal status,
counsel confirmed that was correct.

38
No. 2011AP1572

would appear to be even more similar to marriage in respect to

the mix of genders and the capacity to bear children.

¶55 It is worth noting another point that undermines the

contention that the legal status is defined with reference to

marriage's "constituent elements," which is that the

"constituent element" approach would appear to require us to

find unconstitutional Wis. Stat. § 40.02, which defines domestic

partners for purposes of determining eligibility for state

employee benefits. Wisconsin Stat. § 40.02(21d) states:

"Domestic partnership" means a relationship between 2
individuals that satisfies all of the following:

(a) Each individual is at least 18 years old and
otherwise competent to enter into a contract.

(b) Neither individual is married to, or in a domestic
partnership with, another individual.

(d) The 2 individuals consider themselves to be
members of each other's immediate family.

(e) The 2 individuals agree to be responsible for each
other's basic living expenses.

(f) The 2 individuals share a common residence.
Wis. Stat. Ann. § 40.02. If we must strike down as being

"substantially similar" to marriage any legal status that has

too many of the six elements Plaintiffs identify as the

constituent elements of marriage (relationships between two

persons of specified sexes over a certain age who are not

closely related, are competent to consent and are not married to
someone else), the state's recognition of Chapter 40 domestic

39
No. 2011AP1572

partnerships for the purpose of granting state employee benefits

surely seems to run afoul of that test. At oral argument,

Plaintiffs were given an opportunity to respond to this question

and merely noted that they were not challenging that provision

and that the provision did not create the kind of statewide

legal status that the Amendment prohibited. The problem it

presents for Plaintiffs is that during the ratification process

they never identified the Chapter 40 domestic partnership

provision, which was in existence at the time, as conflicting

with the "substantially similar" Amendment language. Some

Plaintiffs clearly stated that existing benefits would not be

affected,31 yet the meaning they now ascribe to the Amendment

would seem to invalidate Chapter 40, which has more

characteristics in common with marriage than a Chapter 770

domestic partnership.

¶56 We know what the proponents told voters that the

Amendment would mean, and we know that voters approved the

Amendment. What the voters were told was that the Amendment did
not mean that government entities, including the legislature,

would be barred from "extending particular benefits to same-sex

partners as those legal entities might choose to do."32 That is

31
See ¶25, supra (Rep. Mark D. Gundrum characterized
opponents as "continu[ing] the effort . . . to deceive people
about the impact the man-woman marriage constitutional amendment
will have in Wisconsin" and flatly rejected the notion that it
would "seriously jeopardize any legal protections for unmarried
couples – gay or straight.").
32
See ¶30, supra.

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No. 2011AP1572

what the legislature did. The proper interpretation of a

constitutional amendment is what framers and the voters who

approved it thought it meant. The voters were told by

proponents, including the framers of the Amendment, that same-

sex couples could be granted rights notwithstanding the

Amendment. The message given to the voters did not present the

qualifications in regard to extending benefits that the

Plaintiffs now claim.

CONCLUSION

¶57 For the reasons herein, we affirm the court of

appeals' holding that Chapter 770 is constitutional, based on

the presumption of constitutionality, the Plaintiffs' failure to

meet the burden of proof, and the evidence we have reviewed in

accord with the Dairyland decision, which establishes the

framework we use to interpret constitutional provisions.

¶58 The plain language of the Amendment prohibits only a

status "identical or substantially similar to" marriage, and by

implication it does not prohibit what is not identical or
substantially similar thereto. There are important statutory

distinctions in the way the state treats marriage and domestic

partnerships and important differences in the lists of benefits

and obligations that inhere in the two types of relationships.

In light of the totality of those differences, Plaintiffs have

not overcome the presumption that Chapter 770 is constitutional.

¶59 Our conclusion is supported by evidence from the

drafting and ratification process——evidence in the drafting
files that the framers of the Amendment intended specifically to
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No. 2011AP1572

allow legislation that provided a set of rights and benefits to

same-sex couples. We are supported in our conclusion by

evidence that voters were repeatedly told by Amendment

proponents that the Amendment simply would not preclude a

mechanism for legislative grants of certain rights to same-sex

couples. We see no evidence that voters who approved the

Amendment saw it as permitting those rights to be granted only

in the kind of scheme Plaintiffs now suggest——that is, in

cohabiting domestic relationships that bear no resemblance at

all to marriage, with same-sex couples only as incidental

beneficiaries. Of course the Amendment's opponents put out a

different message to voters, but as the court of appeals noted,

it makes sense to credit the notion, when the proponents prevail

in a referendum, that theirs was the message that resonated with

the majority of voters. Finally, our conclusion draws

additional support, although limited, from the legislature's

careful adoption of the first legislative act following the

Amendment, adoption of Chapter 770 itself.

By the Court.—The decision of the Court of Appeals is affirmed.

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No. 2011AP1572.ssa

¶60 SHIRLEY S. ABRAHAMSON, C.J. (concurring). The

majority opinion correctly notes that the instant case does not

address any challenge to Article XIII, Section 13 of the

Wisconsin Constitution. Majority op., ¶1, n.3.

¶61 Although I agree with the majority opinion that

Chapter 770 does not violate Article XIII, Section 13, the

restriction of marriage to opposite-sex couples provided in

Article XIII, Section 13 has been challenged in Wisconsin courts

as unconstitutional.

¶62 This court recently declined to accept an original

action challenging the constitutionality of Article XIII,

Section 13 under the United States Constitution.1 Recently, the

federal district court for the Western District of Wisconsin

declared Article XIII, Section 13, unconstitutional under the

United States Constitution,2 in line with other recent judicial
decisions.3

1
Halopka-Ivery v. Walker, 2014AP839-OA, slip op. (Wis. May
22, 2014) (denying the petition ex parte, with Abrahamson, C.J.,
and Bradley, J., dissenting).
2
Wolf v. Walker, No. 14-CV-64-BBC, ___ F. Supp. 2d ___,
2014 WL 2558444 (W.D. Wis. June 6, 2014).
3
See, e.g., Bostic v. Rainey, 970 F. Supp. 2d. 456, 470
(E.D. Va. 2014); Bishop v. U.S. ex rel. Holder, 962
F. Supp. 2d 1252, 1277 (N.D. Okla. 2014); Kitchen v. Herbert,
961 F. Supp. 2d 1181, 1195 (D. Utah 2013).

1
No. 2011AP1572.ssa

¶63 I write separately to call the reader's attention to

these developments of the law.

2
No. 2011AP1572.pdr

¶64 PATIENCE DRAKE ROGGENSACK, J. (concurring). I join

the majority opinion's thoughtful discussion of the petitioners'

challenge to Wis. Stat. ch. 770 and its reasoned decision that

is well grounded in foundational legal principles. I write in

concurrence to further discuss the presumption of

constitutionality and the importance of the burden of proof that

we must employ when a legislative enactment is challenged on

constitutional grounds. I do so to illustrate that judicial

decision-making is not based on whether the statute reviewed is

grounded in a liberal legislative philosophy or in a

conservative legislative philosophy. But rather, judicial

decision-making is driven by foundational legal principles that

require challengers to overcome the statute's presumption of

constitutionality and to prove that the statute is

unconstitutional beyond a reasonable doubt if their challenge is

to succeed.

I. BACKGROUND

¶65 The petitioners request us to conclude that

Wisconsin's domestic partnership law creates a "legal status"
that is "substantially similar to that of marriage for unmarried

individuals" contrary to the prohibition of Article XIII,

Section 13 of the Wisconsin Constitution, which provides in its

entirety:

Marriage. Section 13. 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.

1
No. 2011AP1572.pdr

II. DISCUSSION

¶66 In order to prevail, petitioners must overcome the

presumption that Wisconsin's domestic partnership law is

constitutional and prove that it is unconstitutional beyond a

reasonable doubt. Tammy W-G. v. Jacob T., 2011 WI 30, ¶46, 333

Wis. 2d 273, 797 N.W.2d 854. The proof that is required is not

proof in an evidentiary sense, as we usually understand burdens

of proof. Rather, it is proof that "establishes the force or

conviction with which a court must conclude, as a matter of law,

that a statute is unconstitutional." Dane County Dep't of Human

Servs. v. Ponn P., 2005 WI 32, ¶18, 279 Wis. 2d 169, 694 N.W.2d

344.

A. Standard of Review

¶67 Whether a statute is facially unconstitutional is a

question of law that we independently review, and while we give

no deference to prior court decisions, we do benefit from their

analyses. State v. McManus, 152 Wis. 2d 113, 129, 447 N.W.2d

654 (1989).

B. Constitutional Challenges
1. Judicial review

¶68 When we review a challenge to the constitutionality of

a statute, we apply foundational legal principles to each case

that comes before us. For example, there is a general

presumption that all legislative acts are constitutional.

Bostco LLC v. Milwaukee Metro. Sewerage Dist., 2013 WI 78, ¶76,

350 Wis. 2d 554, 835 N.W.2d 160. The challenger must overcome

this presumption. Id. The challenger also must prove that the
statute is unconstitutional beyond a reasonable doubt. GTE

2
No. 2011AP1572.pdr

Sprint Commc'ns Corp. v. Wis. Bell, Inc., 155 Wis. 2d 184, 192,

454 N.W.2d 797 (1990). The heavy burden that a challenger must

meet is based on our respect for the legislature as a co-equal

branch of government. Ponn P., 279 Wis. 2d 169, ¶16. Our

procedures promote due deference to the legislature's

constitutional function. Id. (citing State v. Cole, 2003 WI

112, ¶18, 264 Wis. 2d 520, 665 N.W.2d 328). This deference is

grounded in the recognition that creating distinctions upon

which public policies for the state are based is the

legislature's constitutional prerogative. Doering v. WEA Ins.

Group, 193 Wis. 2d 118, 132, 532 N.W.2d 432 (1995).

¶69 We resolve any doubt about whether a statute is

constitutional by upholding the legislature's enactment. Cole,

264 Wis. 2d 520, ¶11. Therefore, it is insufficient for a

challenger to show that the statute's constitutionality is

doubtful or even that the statute probably is unconstitutional.

Id.; Jackson v. Benson, 218 Wis. 2d 835, 853, 578 N.W.2d 602

(1998). Furthermore, given alternate interpretations of a

statute, we employ the interpretation that will sustain its
constitutionality. Am. Family Mut. Ins. Co. v. DOR, 222 Wis. 2d

650, 667, 586 N.W.2d 872 (1998). Stated otherwise, if it is

shown that there are applications or interpretations of the

statute that would be constitutional, the challenge will fail.

Cole, 264 Wis. 2d 520, ¶30.

2. Application

¶70 The majority opinion carefully addresses petitioners'

facial challenge to Wisconsin's domestic partnership law to
determine whether that law creates a "legal status" that is

3
No. 2011AP1572.pdr

"substantially similar to that of marriage for unmarried

individuals." It does so within the court's well-defined

framework for analyzing facial constitutional challenges.

First, the majority opinion accords the domestic partnership law

"a strong presumption" that it is constitutional.1 Second, the

majority opinion holds the challengers to their obligation to

overcome this presumption and to prove beyond a reasonable doubt

that the law is not constitutional.2 In the process that it

applies, the majority opinion is consistent with the process

applied by the court in Madison Teachers, Inc. v. Walker, 2014

WI 99, ¶76, __ Wis. 2d __, __ N.W.2d __, where the

constitutionality of the 2011 budget repair bill, otherwise

known as Act 10, was challenged.

¶71 In Madison Teachers, the majority opinion applies the

same basic analytic framework as the majority opinion does here.

It accords the same presumption of constitutionality to Act 10.3

Madison Teachers also resolves any doubt about the

constitutionality of Act 10 in favor of upholding the statute,

by requiring plaintiffs to prove the law unconstitutional beyond
a reasonable doubt, a burden they did not meet.4

¶72 Because understanding our decision today requires some

appreciation of the foundational legal principles employed in

1
Majority op., ¶17 (quoting Georgina G. v. Terry M., 184
Wis. 2d 492, 515, 516 N.W.2d 678 (1994)); see also ¶57.
2
Id.
3
See Madison Teachers, Inc. v. Walker, 2014 WI 99, ¶¶13,
76, __ Wis. 2d __, __ N.W.2d __.
4
See id., ¶¶44, 73.

4
No. 2011AP1572.pdr

the judicial decision-making that attends facial constitutional

challenges, I write to discuss that aspect of our decision, and

accordingly, I respectfully concur.

5
No. 2011AP1572.pdr