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Home / Commentary / Closing Arguments: Should language banning same-sex marriage be removed from the state constitution?

Closing Arguments: Should language banning same-sex marriage be removed from the state constitution?

BACKGROUND: In Obergefell vs. Hodges, the U.S. Supreme Court ruled on June 26 that same-sex couples throughout the country have the right to get married. In Wisconsin, the ruling immediately gave rise to questions about the ban on same-sex marriage contained in the state constitution. The legality of that prohibition had already been struck down by a federal judge just over a year before, yet the language establishing the ban remains in the state’s foundational charter. As had happened following the federal court’s ruling, the U.S. Supreme Court’s decision in June quickly led to calls for an amendment to remove the ban. Some say, though, that an amendment would serve no purpose because the U.S. Supreme Court’s ruling is the law of the land.

Con: State’s same-sex ban should remain

By Michael Dean

Michael Dean is a lawyer whose main office is in Brookfield.

Michael Dean is a lawyer whose main office is in Brookfield.

Consigning dissent to the memory hole is not the way free people do business. Justices’ dissents raise profound questions, challenge orthodoxy, frame continuing debate, and often become tomorrow’s law.

Wisconsin citizens overwhelmingly approved the constitutional amendment in 2006 as a pre-emptive constraint against judicial fiat, and it now serves as their continuing dissent against exactly that. It should no more be stricken from the Wisconsin Constitution than the Obergefell dissents should be stricken from the United States Reports.

The first objection is to Obergefell’s imperium. Rule of law’s essence is prescription in language. What is written by the legislature today is to be understood and followed by the judiciary tomorrow. But convinced they are more wise and compassionate than anyone in human history, the majority derive their holding, not from constitutional text, but from their powers of invention. They admit their constructions of “liberty” and “equality” have no basis in history, but impose new meanings anyway.

The arrogance is breathtaking. Justice Scalia calls it “hubris” and “astounding.” Chief Justice Roberts asks, “Just who do we think we are?” Reminiscent of Wisconsin’s resistance to the court in the Booth case, Scalia even extends a remarkable invitation to push back, warning that the court has taken “one step closer to being reminded of our impotence.”

Second, Obergefell is grounded on logical fallacies. Virtually all cultures and courts have acknowledged that marriage serves two essential purposes: fulfilling the man and woman who comprise it, and rearing the children they produce. Now Justice Kennedy declares children non-essential because some heterosexuals “do not or cannot have children.” But if that is correct, then fulfillment is not essential either — divorce being proof enough that many individuals “do not or cannot find fulfillment.” Worse, citing Loving as an authority, Kennedy reflexively equates race and sex, despite the numbingly obvious distinction that in bearing and raising children, difference in race is irrelevant, difference in sex is essential.

Third, the majority substitutes its own “reasoned judgment” for that of Wisconsin citizens. Children are ends in themselves, not means to adult fulfillment, and marriage laws have always acknowledged biological reality and institutionalized the norm of children being raised by their own parents. But in equating same-sex unions and marriage, Obergefell confirms a mother’s power to subordinate her son’s need for his father to her own need for a same-sex partner. It lays the groundwork for limiting or denying a child’s right to be reared by her own parents, and for diluting or ending official preference for the natural biological unit on which civilizations have rested time out of mind.

Last, Obergefell raises grave concerns for rights of conscience and free exercise. Kennedy labels disagreement with the new orthodoxy as “disrespect,” “stigma” and “injury.” So is supporting man-woman marriage animus? Were 1.2 million Wisconsin citizens who voted “yes” all bigots? Will the courts permit non-compliance with demands to violate conscience or faith?

If bakers and photographers can be forced to create and express same-sex messages that violate conscience, can an Orthodox deli or Halal butcher be forced to cut pork and cater a barbeque during Ramadan or Sabbath? Or a vegan ad agency be forced to create a “Got Milk” campaign? Let’s hope not.

The amendment is a continuing basis for tolerance and debate. It should remain.

Pro: Same-sex marriage ban should go

By Tamara B. Packard

Tamara B. Packard is an attorney at Cullen Weston Pines & Bach.

Tamara B. Packard is an attorney at Cullen Weston Pines & Bach.

On June 26, the U.S. Supreme Court held, once and for all, that same-sex couples have equal rights to civil marriage under the equal protection and due process clauses of the U.S. Constitution. There is no going back.

The 2006 anti-marriage amendment to the Wisconsin Constitution cannot be enforced and has no legal effect. Thus, while repeal is not necessary from a legal point of view, it should be done. This ugly stain of second-class citizenship for lesbian, gay and bisexual people and their children ought to be removed from the Wisconsin Constitution.

Whether intended or not, the amendment sends the message to married same-sex couples and their children that their lawmakers and fellow citizens do not value them. These families hear that even though the U.S. Supreme Court is demanding that the state treat all of its citizens equally, we go along grudgingly, and would not recognize these families if we were not required to. Although people are certainly entitled to their own opinions, it is mean-spirited to house such sentiment in our constitution.

Retaining the amendment is also bad for business. That same message of disrespect and hostility to married same-sex couples and their children is broadcast to businesses considering moving to Wisconsin or doing business in Wisconsin. Just a few months ago, in response to a legislative proposal thought to be hostile to LGBT people, Indiana lost a $40 million headquarters expansion bid from Angie’s List. The project would have added 1,000 jobs.

What’s more, several large conventions were canceled and the state faced countless boycotts.

Lawmakers quickly retreated. With Wisconsin’s economy trailing so far behind our neighbors, we cannot afford to alienate businesses.

Whether to delete this embarrassing artifact is ultimately up to the voters of Wisconsin. Polling over the past nine years demonstrates that Wisconsin voters have quickly retreated from the prejudices that led to enactment in the first place. If the question were put before voters today, it is highly likely that they would vote to repeal.

To remove the amendment, we must go through the same process it took to adopt it: The proposal must be approved in two successive sessions of the state Legislature and then placed on a statewide ballot. The current Legislature should begin that process by immediately passing the proposed resolution calling for repeal.

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