Julaine K. Appling v. Scott Walker

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Appeal No. 2011AP1572 Cir. Ct. No. 2010CV4434

WISCONSIN COURT OF APPEALS
DISTRICT IV

JULAINE K. APPLING, JO EGELHOFF, J AREN E. HILLER,
RICHARD KESSENICH AND EDMUND L. WEBSTER,

PLAINTIFFS-APPELLANTS,
V.
JAMES E. DOYLE, KAREN TIMBERLAKE AND J OHN FILED
KIESOW,
JUL 05, 2012
DEFENDANTS-RESPONDENTS,

Dane M Frengen
Clerk of Suprene Court

FAIR WISCONSIN, INC., GLENN CARLSON, MICHAEL
CHILDERS, CRYSTAL HYSLOP, J ANICE CZYSCON, KATHY
FLORES, ANN KENDZIERSKI, DAVID KOPITZKE, PAUL
KLAWITER, CHAD WEGE AND ANDREW WEGE,

INTERVENING DEFENDANTS-RESPONDENTS.

CERTIFICATION BY WISCONSIN COURT OF APPEALS

Before Lundsten, P.J., Higginbotham and Brennan, JJ.

We certify this appeal to the Wisconsin Supreme Court to determine
whether Wisconsin’s domestic partnership legislation violates the Wisconsin
Constitution’s mariage amendment. Specifically, this case presents the question
Whether the domestic partnership legislation creates “[a] legal status ...
substantially similar to that of mamiage for unmamied individuals,” as prohibited
by the mamiage amendment.

No. 2011AP1572
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A decision in this case will clarify the meaning of the marriage
amendment and its application to Wisconsin’s domestic partnership law. Because
this case involves a novel constitutional issue and because a decision in this case
will have statewide significance, we certify this appeal to the Wisconsin Supreme
Court for its review and determination.
Background
In November 2006, Wisconsin adopted the marriage amendment as
part of the state constitution. WIS. CONST. art. XIII, § 13. The marriage
amendment provides: “Only a marriage between one man and one woman shall
be valid or recognized as a marriage in this state. A legal status identical or
substantially similar to that of marriage for unmarried individuals shall not be
valid or recognized in this state.” Id. In June 2009, the Wisconsin legislature
“establish[ed] and provid[ed] the parameters for a legal status of domestic
partnership” for same-sex couples, WIS. STAT. ch. 770. See 2009 Wis. Act 28,
§ 3218.
Julaine Appling and several others (collectively Appling) brought
this action to challenge the constitutionality of the domestic partnership
legislation. Fair Wisconsin, Inc., and several individuals (collectively Fair
Wisconsin) intervened as defendants. Appling and Fair Wisconsin both moved for
summary judgment. The circuit court granted summary judgment to Fair
Wisconsin, declaring the domestic partnership legislation constitutional. Appling
appeals.

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Discussion
“The purpose of construing a constitutional amendment is to give
effect to the intent of the framers and of the people who adopted it.” Dairyland
Greyhound Park, Inc. v. Doyle, 2006 WI 107, ¶19, 295 Wis. 2d 1, 719 N.W.2d
408. There are three primary sources for interpreting a constitutional amendment:
“the plain meaning, the constitutional debates and practices of the time, and the
earliest interpretations of the provision by the legislature, as manifested through
the first legislative action following adoption.” Id.
Appling contends that the marriage amendment prohibits the
domestic partnerships created under WIS. STAT. ch. 770. She contends that the
term “legal status” under the marriage amendment refers to the formation and
recognition of a marriage-like relationship as opposed to referring to the rights
and responsibilities flowing from that relationship. So far as we can tell, Appling
concedes that, if the issue is whether domestic partnership rights and
responsibilities are substantially similar to those accompanying marriage, then
domestic partnerships are not substantially similar to marriage. That is, Appling
does not dispute the circuit court’s or Fair Wisconsin’s view that there are
significant differences between domestic partnership rights and responsibilities
and marital rights and responsibilities.1
Focusing on the nature of the relationship, Appling identifies
similarities in eligibility requirements and formation. For example, as to
1 Appling does argue that the rights of domestic partnerships are a subset of marital
rights and that “bundling” these rights in a way previously bundled for marriage only adds to the
similarity. But we do not understand Appling to be arguing that the respective bundles are
substantially similar.

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requirements, Appling notes that, like marriage, domestic partnerships are limited
to two persons of a specified sex who are not too closely related by blood. As to
formation, Appling notes similarities, such as going to a county clerk, paying the
same fee as a marriage license fee, and receiving a “declaration from the same
official” that issues marriage licenses. Appling then contends that a domestic
partnership is “substantially similar” to marriage because it shares these and other
“defining characteristics” of marriage.
We understand a core part of Appling’s argument to be her
contention that marriage is unique in the law as “an exclusive, sex-specific, two-
person, consensual relationship between persons of a certain age that, because of
its sexual nature, may not be shared by persons too closely related by blood.”
Appling contends that the marriage amendment was presented to the public as a
referendum on how we, as a state, define what marriage is. Appling asserts that
voters were asked to draw a distinction between two models of marriage:
(1) the “conjugal model,” designed around the procreative function
and the joint parenting by a man and woman of the children of
their union, and
(2) the “close relationship” model, designed around a private
relationship between two people and focused on the happiness
and intimacy of that relationship.
According to Appling, same-sex couples in domestic partnerships can only fit the
“close relationship” model. Thus, Appling contends, the domestic partnership
legislation is unconstitutional because it provides legal validation for the “close
relationship” model, a model Wisconsin voters intended to prohibit by voting for
the marriage amendment.

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Fair Wisconsin responds that the term “legal status” in the marriage
amendment refers to the way a relationship is treated under the law. In support,
Fair Wisconsin cites a dictionary definition of “status” as “[a] person’s legal
condition, whether personal or proprietary; the sum total of a person’s legal rights,
duties, liabilities, and other legal relations ….” See BLACK’S LAW DICTIONARY
1542 (9th ed. 2009). Fair Wisconsin then contends that a domestic partnership is
not “substantially similar” to a marriage because the rights and obligations that
come with domestic partnership recognition are substantially different than marital
rights and obligations. Fair Wisconsin highlights several differences in rights and
obligations, arguing that these differences make it clear that the legal status
created by the domestic partnership law is not “substantially similar” to marriage.
See, e.g., WIS. STAT. §§ 905.05, 895.04, 700.19(2) and (2m), 321.62(11)(a),
146.81(5), 103.10, and 51.30(4) (examples of rights provided to both spouses and
domestic partners); see also WIS. STAT. §§ 11.05(1), 11.26, 36.53, 45.61(2),
45.84(1), 48.82(1), 154.30(2)2., and 767.61 (examples of rights afforded to
spouses, but not domestic partners). Fair Wisconsin contends that there is no
evidence supporting Appling’s argument that voters intended to define marriage in
terms of a “conjugal model” and to prohibit legal recognition of adult relationships
that do not fit that model.
Both parties cite public statements by opponents and proponents of
the marriage amendment that were made prior to the time the electorate voted as
evidence of the electorate’s understanding. Appling points to statements of
amendment opponents to the effect that the type of challenge Appling now brings
might invalidate domestic partnerships. Fair Wisconsin points to assurances by
Appling and other amendment proponents that domestic partnerships would not be

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prohibited. We are unsure, based on the briefing before us, whether the public
debate sheds much light on the electorate’s intent.
Finally, the parties dispute whether it is appropriate to look to WIS.
STAT. ch. 770 itself as evidence of the meaning of the marriage amendment. See
Dairyland, 295 Wis. 2d 1, ¶19 (primary sources of constitutional interpretation
include “the earliest interpretations of the provision by the legislature, as
manifested through the first legislative action following adoption”). Appling
contends that, because here the earliest adopted legislation is the very legislation at
issue, it is not appropriate to look to that legislation as evidence of the
amendment’s meaning. Fair Wisconsin argues that, in this case, the legislation is
strong evidence of the amendment’s meaning.
We perceive nothing particularly complicated in the parties’ dispute
over the meaning of the marriage amendment and its application to Wisconsin’s
domestic partnership law. We therefore perceive no reason why the supreme court
might benefit from the refinement of issues that sometimes occurs when a dispute
first works its way through briefing and decision in the court of appeals. Thus, in
light of the statewide importance of the issue and the desirability of a prompt and
final resolution, we certify this appeal to the Wisconsin Supreme Court.