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High court unanimously upholds Wisconsin domestic partner registry

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domestic partner registry file photo

Crystal Hyslop, right, and Janice Czyscon take oath at the Dane County Clerk's Office while signing up for the state's new domestic partner registry in this 2009 file photo.

The Wisconsin Supreme Court upheld the state’s domestic partnership registry Thursday, ensuring same-sex couples will retain certain rights no matter how a federal court rules on the state’s constitutional amendment banning gay marriage.

In a unanimous decision written by Justice N. Patrick Crooks, the court emphasized that proponents of the amendment, including Wisconsin Family Action executive director Julaine Appling, the lead plaintiff in the case, and Senate Majority Leader Scott Fitzgerald, made public statements in 2006 that the marriage amendment wouldn’t prevent the Legislature from granting certain rights to same-sex couples.

“We are supported in our conclusion by evidence that voters were repeatedly told by Amendment proponents that the Amendment simply would not preclude a mechanism for legislative grants of certain rights to same-sex couples,” Crooks wrote.

Chief Justice Shirley Abrahamson wrote a concurring opinion, highlighting that the marriage amendment was found unconstitutional by U.S. District Judge Barbara Crabb. Crabb’s decision was stayed and is under review by the 7th Circuit Court of Appeals at the request of Gov. Scott Walker and Attorney General J.B. Van Hollen. It could ultimately be settled by the U.S. Supreme Court.

Justice Patience Roggensack also wrote a concurring opinion saying judges’ decisions are not based on conservative or liberal philosophy.

“Rather, judicial decision-making is driven by foundational legal principles that require challengers to overcome the statute’s presumption of constitutionality and to prove that the statute is unconstitutional ... if their challenge is to succeed,” Roggensack wrote.

In 2006, 59 percent of voters supported the constitutional amendment limiting marriage to “one man and one woman” and barring any “legal status identical or substantially similar to that of marriage.”

In 2009, the Democratic-controlled Legislature and Gov. Jim Doyle enacted a law conferring some existing marital rights to registered same-sex domestic partnerships. Since then 2,421 partnerships have been registered with the state, more than half of them in 2009, and 148 separations have been filed.

Appling filed a lawsuit in 2009 before the law took effect, arguing the registry violates the constitution because it creates a legal status substantially similar to marriage for same-sex couples.

Van Hollen said he wouldn’t defend the law because he thought it was unconstitutional, so Doyle hired Madison lawyer Lester Pines to defend it.

After his 2010 election Walker fired Pines, leaving defense of the law up to gay rights advocate Fair Wisconsin and other interested parties that had intervened in the case. Pines said Thursday the state paid his firm $75,000 between Oct. 29, 2009, and June 28, 2011, for work on the case.

Appling said she was “disappointed that the Supreme Court didn’t agree with us.”

“What’s really important is that marriage remains one man and one woman in our state and that marriage is recognized as unique and nothing like relationships that same-sex couples form,” Appling said.

Fair Wisconsin president Katie Belanger said the decision “was not about interpreting what marriage means for the state of Wisconsin.”

Senate Minority Leader Chris Larson, D-Milwaukee, said “it’s time for Wisconsin Republicans to stop wasting our money on defending policies that promote inequality, foster discrimination and unconstitutionally limit the rights and freedoms of our fellow Wisconsinites.”

Van Hollen, the state’s top lawyer, said he still believes the registry is unconstitutional. Walker spokeswoman Laurel Patrick said in an email “we will continue to administer state law.” Fitzgerald called Thursday’s bevy of decisons “monumental.”

— The Associated Press contributed to this report.


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