By Joe Forward, Legal Writer, State Bar of Wisconsin

Aug. 5, 2010 – In McConkey v. J.B. Van Hollen, 2010 WI 57, the Wisconsin Supreme Court unanimously held that the 2006 “marriage amendment” to the Wisconsin constitution did not violate a requirement that voters must be allowed to vote separately on separate amendments – the separate amendment rule.

In November of 2006, the Wisconsin Legislature submitted a proposed amendment to the Wisconsin constitution that would ban same sex marriage and civil unions. The voters approved the amendment.

William McConkey, a Wisconsin-registered voter, initially challenged the marriage amendment on equal rights and due process grounds, but the circuit court held that McConkey did not have standing to bring those claims. McConkey did not appeal on that point.

As a voter, McConkey did have standing to challenge the amendment process, the circuit court held. Upon certification, the supreme court agreed.

Although “troubled by the broad general voter standing articulated by the circuit court,” the supreme court explained, “we believe the unique circumstances of this case render the merits of McConkey’s claim fit for adjudication.”

But like the circuit court, the supreme court – in an opinion written by Justice Michael Gableman – held that the marriage amendment satisfied the separate amendment rule.

Constitutional provisions and arguments

Article XIII, section 13 of the Wisconsin Constitution – the marriage amendment – 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.”

Article XII, section 1 of the Wisconsin Constitution requires that if more than one amendment is submitted to the people for a vote, the amendments “shall be submitted in such a manner that the people may vote for or against such amendments separately.”

McConkey argued that the marriage amendment consists of two amendments – a ban on same-sex marriage and a ban on civil unions – that should have been presented to the voters separately in accordance with the separate amendment rule. Thus, the amendment is invalid, McConkey argued.

The supreme court clarified that the question presented “is not whether the marriage amendment is good public policy or bad public policy … the issue is whether the marriage amendment was adopted in conformity with the” separate amendment rule.

However, the supreme court explained that the separate amendment rule “does not prohibit a single constitutional amendment from being complex or multifaceted” and that “[s]uch an approach would make amending the constitution unduly difficult. …”

Propositions do not violate the separate amendment rule “if they relate to the same subject matter and are designed to accomplish one general purpose,” the court explained.

The court held that both propositions in the marriage amendment carry out the same general purpose of preserving the legal status of marriage in Wisconsin as between one man and one woman. The court noted that five other state supreme courts – Arizona, Florida, Georgia, Louisiana and Massachusetts – have concluded the same under separate amendment rules.

Attorneys

Lester Pines, Tamara Packard, and Cullen Weston of Pines & Bach LLP, Madison, and Edward Marion of Edward Marion Attorney-At-Law LLC, Madison, represented William McConkey. Assistant Attorney General Lewis Beilin, Deputy Attorney General Raymond Taffora and Attorney General J.B. Van Hollen represented the state.