Frederica Freyberg:

The Wisconsin Supreme Court heard arguments on both sides of the state’s domestic partnership law this week. The conservative group Wisconsin Family Action filed suit in 2010 over the law, saying it violates a 2006 state constitutional amendment banning gay marriage or anything substantially similar. The domestic partnership law gives same-sex couples rights, including to family medical leave, hospital visitation and the ability to make end-of-life decisions. Those who support the law say it is not similar to marriage. A circuit court and an appeals court have ruled the domestic partnership law does not violate the state constitution because it doesn’t create a legal status for domestic partners that is substantially similar to marriage. Earlier today, I spoke with Julaine Appling, the director at Wisconsin Family Action. Julaine Appling, thanks very much for being here.

Julaine Appling:

Thank you for the opportunity, Frederica. It’s good to be with you again.

Frederica Freyberg:

Tell us what the crux of your argument is that the domestic partnership law violates the state constitutional amendment banning gay marriage or anything substantially similar.

Julaine Appling:

Sure. In 2006 people of Wisconsin went to the polls and they voted on an amendment. Nearly 60% of them voted to affirm that amendment. That amendment very clearly said, the first part, marriage is between a man and a woman, and secondly the amendment says that a legal status identical to or substantially similar to that of marriage for unmarried individuals or persons shall not be valid or recognized in this state. When Governor Doyle and his friends in the legislature in 2009 passed the state budget, what they did was they created a legal status that is at least substantially similar to the legal status of marriage. And so because of that it runs afoul of the constitution.

Frederica Freyberg:

That word, substantially similar' though, is where this hangs up, I guess, because a circuit court and an appeals court have both ruled that in fact it does not violate that constitutional amendment because it is not substantially similar. So what about that?

Julaine Appling:

Well, you know, quite frankly, if we were filing this lawsuit today, we would not have filed in Dane County, okay? We had to file in Dane County because at that time a lawsuit of this nature had to be filed in Dane County. So am I surprised we lost in Dane County? No. Am I disappointed? Sure. But our attorneys looked at the brief and we said you know what? We think they got this completely wrong. So we appealed to the branch four of the circuit– excuse me, court of appeals. And, yes, we didn’t have any choice where we filed in the court of appeals. And that branch is also headquartered in Madison. And we disagreed with the findings of the circuit court as well. And, you know, we build our case, and I think our attorneys did a great job on Wednesday building the case that the– the legal status– and you know, our attorney, Frederica, opened with a very strong statement saying, this is about legal status. It’s not about benefits. All right? And that’s where we stake our claim. And so the fact that two courts below have disagreed with our opinions, disappointing, but not surprising, and that’s why we a judiciary system that lands at the high court.

Frederica Freyberg:

What about the argument that domestic partnerships are different because it’s not like marriage because a marriage, to legally sever it, you have to get a divorce?

Julaine Appling:

Well, you know, we understand that, and we understand there’s a difference in exit. But the legal status stands on its own, separate from the ability to get a divorce. For instance, if the divorce laws changed today, all right, and opened them up– Let’s just say the divorce laws became exactly like domestic partnership benefit exits are right now. It doesn’t change the legal status of marriage. If the government took away all of the trappings, the exit idea, the legal incidents or the benefits that they give to married people, the legal status of people in marriages remains married, same as domestic partner would.

Frederica Freyberg:

Having heard the justices’ questions in court yesterday, did it give you any inkling about where they might go or how they might rule?

Julaine Appling:

You’ve been at this a long time. You've watched a lot of these hearing. And one thing I’ve learned is, number one, no one can read the mind of a supreme court justice, here or anywhere else. Secondly, it’s dangerous to read in too much to the line of questioning that justices do. You know, that’s an opportunity for them to dig and to try to see what they can find out from both, you know, opposing counsel and our counsel. There was really nothing in the line of questioning that surprised me, nothing.

Frederica Freyberg:

What about the questions around whether the high court could remove just certain parts of this domestic partnership law instead of, kind of, deciding it was unconstitutional or constitutional altogether?

Julaine Appling:

Well, you know, that is an amazing– That was actually an amazing discussion because on one level, with the separation of powers, the judiciary is not a law-making body. And so if they decide that route, it will be fascinating to see what they do to be able to really not, kind of, move into the legislative prerogative. It seems to me that the court would have to create a path, if you will, in their opinion to say, you know, this is what we think would comport with constitutional muster here. And then leave it up to the legislature. I just can’t imagine that this court, who haven’t really gone that path before, going that far and trying to write legislation.

Frederica Freyberg:

All right. Well, we’ll wait and see. Julaine Appling, thank you very much.

Julaine Appling:

Thank you, Frederica.