Plaintiffs’ standing would be a good thing

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Whatever the Wisconsin Supreme Court ultimately decides on whether or not the domestic partnership registry is constitutional, it would be very unfortunate if that decision is delayed based on a holding that the plaintiffs in Appling v. Doyle lack standing to bring a lawsuit challenging it.

The government enacted the law; and the government should defend its constitutionality; the plaintiffs, for their part, are more than willing to litigate the issue at, presumably, quite significant expense.

But consider the alternative, should the courts decide that the plaintiffs have no standing.

Every time a person in the registry dies intestate, the constitutionality of the law will be at issue. “Traditional heirs” under the intestacy laws will definitely have standing to sue the surviving domestic partner over the estate.

It is easy to see how constitutional challenges by those heirs could devour the value of the estates at issue.

Even the most ardent supporter of the registry should agree that it is not in the interest of surviving domestic partners to have to litigate its constitutionality themselves in courts around the state, when there are others ready, willing, and much more able to do it in their stead.

But dismissal of the current case on standing grounds would result in just that.

Furthermore, results in lower courts would likely differ, with some upholding the registry, and others striking it down. Meanwhile, the heirs and the surviving partners would incur greater legal fees as the various cases work their way through the system, before eventually getting to where we could start this matter — the Supreme Court.

The same would be true in employment law, as the law extends the Wisconsin Family or Medical Leave Act to domestic partners.

Like heirs, employers will challenge the constitutionality of the law, and they definitely would have standing to do so.

But it would be very inefficient, and costly to employers and employees alike.

Of course, standing to sue is itself a constitutional issue. Absent standing on the plaintiff’s part, a court has no authority to hear a case. But hopefully, standing will not be a contentious issue.

The Supreme Court will eventually decide this issue, one way or the other. But how the courts rule on the plaintiffs’ standing in this case will determine whether they do so efficiently, or do so only after a lot of people and businesses around the state have incurred a lot of expense and hassle.

In the meantime, though, if anyone says that, because of the registry, they don’t need you to draft a will for them, nip that notion in the bud. The cost of drafting a will naming the domestic partner as heir will be infinitesimal compared to litigating the registry’s constitutionality.