Lawyers asked to define legal domestic partnerships

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State Supreme Court justices heard arguments Wednesday debating what sort of domestic-partnership law would comply with the state’s ban on same-sex marriage.

Christopher Clark, a lawyer with New York-based Lambda Legal, said state lawmakers already provided an answer when they in 2009 passed legislation allowing same-sex couples to enter into domestic partnerships. He said that law was specifically written to avoid a 2006 constitutional amendment’s ban not only on marriages between members of the same sex, but also on arrangements that are “substantially similar” to marriage.

But if that was the intent, then legislators went too far, said Austin Nimocks, who represented the petitioner Wednesday in arguments presented at a state Supreme Court hearing for Appling v. Walker.

Instead of merely according certain rights to domestic partners, Nimocks said the 2009 law established a legal status that exhibits the “constituent elements” of marriage.

Wisconsin’s domestic partnerships have the constituent elements of marriage, he said, because they are only open to those who are of the same sex, are not closely related, and are not in marriages or domestic partnerships with other people. Other than marriage, no other legal status under Wisconsin law carries similar requirements, Nimocks said.

For that reason, he argued, the domestic-partnership law was “mimicking marriage’s blueprint in Wisconsin’s code.”

Removing those requirements, Nimocks said, certainly would bring the state closer to having a legal status that does not violate the ban on arrangements that are substantially similar to marriage. But he said his primary goal was not to find an alternative to the 2009 law, but to have the law deemed unconstitutional.

Such arguments, Clark said, fail to take into account the many ways in which domestic partnerships differ from marriages under Wisconsin law. For one, besides conferring various benefits on couples, marriage also brings a host of obligations.

Christopher Krimmer, who practices family law for Madison-based Balisle & Roberson SC, agreed that the list of duties is lengthy.

“In marriage, you have property obligations to each other, support obligations” Krimmer, who also teaches a class on sexual orientation and the law at Marquette University, said. “You have the availability of divorce. The state has a vested interest in ensuring both parties are treated fairly at the termination of the relationship.”

To end a domestic partnership in Wisconsin, Krimmer said, a couple merely need file termination papers with a county clerk. After that, all of the rights they had with respect to each other end in 90 days.

“There are no legal actions, no court involvement,” he said. “You don’t divide property, or have to worry about custody or the placement of kids.”

Clark also noted that a formal ceremony is used to “solemnize” a marriage. To form a domestic partnership, he said, a couple only must fill out paperwork at a county clerk’s office.

To understand what was intended when they outlawed arrangements that are substantially similar to marriage, Clark said the justices should look back at the arguments made when the constitutional amendment was approved by lawmakers and put before voters. At that time, he said, regular references were made to a desire to ban “Vermont-style” civil unions.

Those sort of unions were marriages in everything but name, he said. The purpose of Wisconsin’s law, he said, was merely to provide a “limited number of important protections to same-sex couples and to do it in a way that conforms with the same-sex marriage amendment.”

Wisconsin’s high court took up the challenge of the state’s domestic partnerships about four months after the U.S. Supreme Court ruled that the Defense of Marriage Act, which would have prevented married gay couples from receiving federal benefits, was unconstitutional.

Wisconsin Family Action filed its challenge of the state’s law when former-Gov. Jim Doyle was in office. Since then, Gov. Scott Walker has ceased seeking to defend the law.

In Nov. 2009, the state Supreme Court declined to be the first jurisdiction to consider the case and the petition instead was filed in Dane County Circuit Court the following year.

Both that court and a state court of appeals later upheld the constitutionality of the law. The Wisconsin Supreme Court is expected to issue a ruling in the case by next summer.

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