When the U.S. Supreme Court was asked to review the constitutionality of Obamacare, one of the key questions was whether the law could survive if parts of it were struck down.
The legal concept at play is severability. A severable statute, as defined by the Legal Dictionary, is one that remains "self-sustaining" and "capable of separate enforcement" after an invalid portion of it has been tossed.
The issue of severability came up during oral arguments before the Wisconsin Supreme Court Oct. 24 on a constitutional challenge to the state's domestic partner registry. The registry gives same-sex couples access to about 40 of the rights and responsibilities accorded married couples.
Former Gov. Jim Doyle signed the domestic partner registry into law as part of the 2009-2011 biennium budget. Opponents of the registry soon challenged the law, charging it violates the state's 2006 constitutional ban on gay marriage and any "legal status identical or substantially similar to that of marriage."
On the issue of severability, Chief Justice Shirley Abrahamson asked whether the law would be constitutional if the requirement that domestic partners be same-sex couples were struck down, along with the prohibition against close relatives forming such a partnership.
"I believe it likely would be," responded attorney Austin R. Nimocks, who is representing the plaintiffs in Appling v. Doyle. In other words, he argues that it would be legal for rights and benefits to be provided to domestic partner relationships as long as those partnerships are not sex-specific; they could include such domestic pairings as two sisters who live together.
That way, says Nimocks, the status of legal marriage would be preserved. "The [same-sex] relationship in and of itself would not be marriage-like, and that is what is important to make things constitutional," says Nimocks, an attorney with the Alliance Defending Freedom, a conservative Christian nonprofit organization based in Scottsdale.
Justice David Prosser warned Nimocks about the consequences of his argument. If his clients have no beef with the benefits provided domestic partners, just the "marriage-mirroring legal status" created in the statute, the Legislature could amend the statute to allow more benefits to flow to domestic partners, and they would have no case to stop them, said Prosser.
"I get a sense you're rolling the dice here," said the justice.
Justice Michael Gableman also pressed Nimocks on exactly what kind of legal status the constitutional ban on gay marriage was intended to prevent.
Nimocks represents Julaine Appling, the executive director of Wisconsin Family Action, the socially conservative organization that spearheaded the same-sex marriage ban.
Amendment supporters claimed at the time it was needed to prohibit anything "substantially similar" to marriage in order to prevent the creation of "Vermont-style" civil unions. But now that they're challenging the constitutionality of a partnership that bestows only limited benefits, Gableman asked whether their argument had changed. Nimocks said no, but Gableman, clearly not convinced, read from the statute governing civil unions in Vermont:
"Parties to a civil union shall have all the same benefits, protections and responsibilities under law, whether they derive from statute, administrative or court rule, policy, common law, or any other source of civil law as are granted to spouses in a marriage."
Gableman, who is generally regarded as a member of the court's conservative wing, again asked, "The argument hasn't changed?"
Nimocks stuck to his script. Wisconsin's domestic partnership law was "virtually identical" to Vermont's provisions for civil unions, he said. "The Vermont-style civil union mimicked marriage. It had all the requisite requirements of marriage in Vermont except it was only for same-sex couples. It is virtually identical to [the domestic partnership registry]."
Attorney Christopher Clark, who represents the intervening defendants in the case -- Fair Wisconsin, the state's largest gay rights organization, and five lesbian and gay couples -- said proponents of the ban were clearly switching strategies with its challenge of limited benefits for same-sex couples.
"They repeatedly told voters this is about not allowing same-sex couples to marry and not allowing civil unions," he said. "What we hear today is a complete back away from that position."
An attorney with Lambda Legal, a civil rights organization for the LGBT community, Clark also said rewriting the state's domestic partnership law would "undermine" its legislative intent.
"What the Legislature did in 2009 was to provide a limited set of rights and benefits to same-sex couples and families in a manner that was consistent with the [state] constitution," he said. "They wanted to give the gay and lesbian citizens of Wisconsin an ability to protect themselves that was consistent with the constitutional amendment that had passed previously."
Donald Downs, a UW-Madison political science professor, says that courts in general assume that lawmakers take pains to draft laws that pass constitutional muster and do not strike down a law "unless it's sufficiently clear it's unconstitutional."
"Courts would rather not go that far, so they take a more generous interpretation of the law based on the separation of powers," he says.
In June 2011, Dane County Judge Daniel Moeser ruled the registry constitutional, and that decision was upheld by a state appeals court.
The Supreme Court is not expected to hand down a decision until 2014.
