Nov. 3, 2009 – Issues of standing and the best method to interpret the purpose of a constitutional amendment dominated oral arguments before the Wisconsin Supreme Court in a challenge to the 2006 “marriage amendment” prohibiting recognition of same sex-marriage.

In the case McConkey v. Van Hollen, 2008AP1868, William McConkey alleges that the amendment ballot measure improperly asked voters to consider two unrelated questions in violation of the state constitution’s “separate amendment” rule. Specifically, McConkey argues that the amendment posed the question of whether marriage is properly defined as the union of one man and one woman, but also that it sought to restrain the power of the Legislature to grant privileges to any unmarried couple – whether homosexual or not.

The amendment, incorporated as Article XIII, Section 13, states, “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.”

Standing

McConkey acknowledged that even if the two issues he identified had been presented separately to the voters, he would not have voted for either of them. Accordingly, his single vote against the marriage amendment adequately expressed his opposition to both issues raised, the Wisconsin Attorney General argued.

Without demonstration of a direct, personal harm, the Attorney General reasoned, McConkey has no standing to bring the suit.

At oral arguments, Lester Pines, McConkey’s attorney, responded that the “separate amendment” rule found in Article XII, Section 1 of the state constitution is intended to ensure the will of the people is actually expressed. Consequently, Pines argued, every voter has standing to enforce this provision.

Further, Pines noted that because the state raised the standing issue in a motion to dismiss, the court is obliged to assume the truth of the facts alleged by McConkey. Accepting as a fact that the single amendment presented two questions for which the voters may have had divided preferences, Pines said McConkey was denied his constitutional right to persuade his neighbors to vote against at least one of the questions.

Under questioning from Justice David Prosser, Pines said there should be a certain time within which the voter can bring his claim, but Pines did not specify how long that period would be. Pines did not believe a voter should only be permitted to bring his challenge after the Legislature produces a ballot measure, but before voters go to the polls. Pines said such a narrow window to act would be disruptive, forcing courts to enjoin voting.

Methods to find an amendment’s purpose

Justices considered competing approaches to find the purpose of an amendment by which a reviewing court can decide whether the ballot measure contains extraneous provisions in violation of the constitution’s single-question requirement.

Pines argued for a two-part test in which the court should first look at how the Legislature described the amendment in the title of its joint resolutions approved prior to submitting the matter to the voters. Second, the court should consider whether the propositions are interrelated and interdependent “such that if they had been submitted as separate questions, the defeat of one question would destroy the overall purpose of the multi-proposition proposal.”

Chief Justice Shirley Abrahamson asked Pines why the court could not follow its same procedure for discerning a statute’s purpose – an inquiry touching upon a variety of sources such as the legislative history and other sources extrinsic to the text. Pines responded that a constitutional amendment is not the same as an adopted statute, making the methods of statutory interpretation inappropriate.

Assistant Attorney General Lewis Beilin embraced Abrahamson’s suggestion that the court should examine the constitutional amendment as it would a statute.

But Justice Ann Walsh Bradley questioned whether the state’s “kitchen sink” approach could lead to a clear understanding of the purpose. Bradley cited to a newspaper article that quoted a legislator who explained that she hoped the amendment would preserve marriage for opposite-sex couples, but that she did not know if civil unions ought to be outlawed as well. Another legislator might also want to prohibit civil unions with this amendment, Bradley remarked.

Beilin responded that the court would simply have to accord the weight it believed each piece of evidence merited.

Single purpose

Combating the characterization of the amendment as two unrelated provisions, Beilin argued the ballot initiative advanced a single purpose of preserving marriage as a unique legal status among heterosexual couples and ensuring that the limitation is not nullified by legislatively-created “marriage by another name.”

Beilin warned that if each provision furthering an overarching objective must go on a series of ballot measures, the constitutional amendment process would be unworkable.

Testing the extent of this generalized view of an amendment’s scope, Abrahamson asked Beilin whether the Legislature could determine under this amendment that the special status of marriage is furthered by curtailing divorce. Acknowledging that it could, Beilin suggested that the court look to whether the Legislature envisioned such a result when it approved the amendment.

Justice Annette Ziegler wondered whether the marriage amendment satisfied Pines’ proffered standard of interdependence among clauses. Ziegler asked whether the second provision limiting the Legislature’s ability to grant a legal status to unmarried couples encompassed the first provision’s restriction of marriage to opposite-sex couples.

Pines distinguished the two provisions, asserting no connection exists between setting aside the legal status of marriage for heterosexuals and saying that those not married are to be deprived of something the Legislature might want to give them in the future.