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Legal tactics change in domestic partnership challenge

The group questioning the constitutionality of Wisconsin’s domestic partnerships registry has changed tactics now that it is bringing its case to the state Supreme Court, according to a lawyer specializing in family law.

Christopher Krimmer, a partner at the Madison-based Balisle & Roberson SC said the central question in the case of Appling v. Walker remains the same: Are the domestic partnerships that state Democrats and former-Gov. Jim Doyle passed into law in 2009 “substantially similar” enough to marriage to be illegal under a 2006 constitutional amendment banning same-sex marriage?

But the arguments being put forth by the party bringing the case, Julaine Appling of Wisconsin Family Action, who pushed for the 2006 constitutional amendment, have changed since the same challenge failed before lower courts.

Krimmer, who said he has read the briefs submitted in the case, said the lawyers representing Appling now plan to argue domestic partnerships are unconstitutional because the process a couple goes through to form one is substantially similar what a couple goes through to get married. For instance, Krimmer said, two people who want to enter a domestic partnership must offer an assurance that they do not share a close familial connection and must be registered at a county clerk’s office. The fee they pay to have their names added to the registry also is the same fee paid for a marriage license.

The briefs point out, Krimmer said, that a person who wants to enter a domestic partnership must offer an assurance that he or she plans to live with the other partner. That point might detract from the argument a bit, he added, noting that the law does not require married couples to live together.

Krimmer, who teaches a class on sexual orientation and the law at Marquette University, said the lawyers involved with the case are trying to blaze a new legal trail in Wisconsin.

“There is no case law that talks about these kinds of elements,” he said. “This is borrowed from other states.”

Appling’s lawyers originally built their case, Krimmer said, around the 43 rights the 2009 law conferred on couples who registered as domestic partners. The lawyers tried to argue that those rights, many of which concern the inheritance of property and ability to visit a partner in the hospital, were close enough to those conferred by marriage to make the two types of association substantially similar, he said.

But that argument ran aground in the lower courts, Krimmer said, on the fact that marriage actually confers hundreds more rights, as well as obligations.

“In marriage, you have property obligations to each other, support obligations,” he 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.”

The Wisconsin Supreme Court will hear oral arguments in the challenge to the state’s domestic partner registry on Wednesday.

The conservative group Wisconsin Family Action filed a lawsuit in 2010 alleging the registry violates a 2006 state constitutional amendment banning gay marriage or anything substantially similar.

Austin Nimocks is an attorney for the group. He told the justices during oral arguments Wednesday the qualifications to get married and get on the registry are substantially similar and the registry mimics a married relationship.

Christopher Clark, an attorney for Fair Wisconsin, the state’s largest gay rights group, counters the registry doesn’t come close to marriage. He said marriage is a civil contract that comes with obligations that the registry doesn’t require.

A state appeals court upheld the registry this past year.

The Associated Press also contributed to this report.

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