Supreme Court Justice Michael Gableman and other justices grilled attorneys over the constitutionality of Wisconsin's domestic partner registry.
Lawyers representing opponents of the state's domestic partner registry have asked the Wisconsin Supreme Court to rule it violates the state's 2006 constitutional ban on gay marriage. But during oral arguments Wednesday in the case of Appling v. Doyle, attorney Austin R. Nimocks was put on the spot when several justices asked whether the statute could be made constitutional by reworking the language on who can enter into a domestic partnership.
Chief Justice Shirley Abrahamson, for instance, hypothesized removing the requirement that domestic partners be same-sex couples and the prohibition against close relatives forming such a partnership. Abrahamson asked Nimocks if the statute would then be constitutional.
“I believe it likely would be," said Nimocks, who is with the Alliance Defending Freedom, a conservative Christian nonprofit organization based in Scottsdale, Arizona.
In an interview after the oral arguments, Nimocks said he was not surprised that the justices asked in detail about how to make the law constitutional. The 2009 Wisconsin law provides same-sex couples who join the state's domestic partner registry with some 40 benefits, including the right to inherit each other's property and hospital visitation rights.
"The [2006 constitutional] amendment is clear that rights and benefits can be provided," said Nimocks. "But how they are provided is important. And the court was looking at how to make chapter 770 constitutional so that was not a surprise. Ultimately they're trying to fulfill the will and intent of the voters to provide benefits in a non-marriage-like fashion."
Nimocks said by removing the gender-specific provisions and the notion of "consanguinity," it would mean that both same-sex couples and, for instance, two sisters who live together could benefit from a domestic partnership relationship.
But, Nimocks added, the [same-sex] relationship in and of itself would not be marriage-like and that is what is important to make things constitutional."
Justice David Prosser had warned Nimocks during oral arguments that the attorney might run into trouble down the road by arguing his clients had no beef with the benefits accorded domestic partners, just the "marriage-mirroring legal status" created in the statute.
"I get a sense you're rolling the dice here," Prosser said. "If you don't prevail on whether [the domestic partner registry] is substantially similar [to marriage], the Legislature can add benefits and you don't have an argument."
Abrahamson also asked Nimocks about other consequences of his argument: "Counsel, while you're seated, I'd like you to consider, should you prevail, does that render the constitutional amendment a violation of the federal constitution?"
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 after the oral arguments that Nimocks' clients were changing their tune from 2006 when the state's gay marriage ban passed in a statewide referendum.
"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 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."
The state's domestic partner registry was included in the 2009-11 biennial budget and signed by Gov. Jim Doyle.
Julaine Appling, the executive director of Wisconsin Family Action, a socially conservative organization that opposes homosexuality, challenged the law soon after it passed. Wisconsin Family Action spearheaded the campaign to ban same-sex marriage and civil unions in the state constitution.
The Supreme Court is not expected to hand down a decision until 2014.