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Judge may rule soon on challenge to state's gay marriage ban

Judith Davidoff  —  5/23/2008 5:14 pm

Last week, as the California Supreme Court was making national headlines for overturning California's gay marriage ban, local attorney Tamara Packard was putting the final touches on the final legal brief on behalf of her client, William McConkey, who is challenging Wisconsin's gay marriage ban.

Packard and lead counsel Lester Pines filed the brief Monday, a little less than two weeks before they are due to appear before Dane County Circuit Judge Richard Niess for oral arguments. Lawyers for the state Department of Justice also are scheduled to appear on May 30.

Packard and Pines, of Cullen, Weston, Pines & Bach, say they would not be surprised if Niess issues his ruling that day.

"The newer judges, because of the way they are trained these days, do tend to rule from the bench," said Packard. That's great for litigants, she added, "because we then keep things moving, we know what's going on and we don't have to sit around waiting."

If Niess does not rule from the bench, he would likely have about 90 days from the hearing date -- or any subsequent legal action concerning the case -- to issue a decision.

While the California Supreme Court ruled that the California ban did not pass constitutional muster, the issue before Judge Niess is much more narrow. McConkey also had originally claimed that Wisconsin's constitutional amendment violated the equal protection clause of the U.S. Constitution, but Niess ruled in September that McConkey did not have standing to sue on that issue.

Niess did, however, allow McConkey to proceed on the question of whether the referendum on the fall 2006 ballot asked two questions rather than one -- whether to ban gay marriage and whether to prohibit anything "substantially similar" to marriage. Significantly, a provision in the Wisconsin Constitution, known as the single subject rule, prohibits referendum questions from asking multiple questions.

The Department of Justice argues in its brief that the marriage amendment is constitutional because its parts relate to the same subject matter and are designed to accomplish the same thing.

But if the judge agrees with McConkey that the referendum did pose two questions to voters, the state's constitutional amendment, which was approved by 59 percent of voters, would be overturned.

Most likely, such a ruling would be immediately appealed and the Court of Appeals would likely stay any judgment pending the outcome of the appeal.

The Wisconsin Supreme Court has ruled only three times in the last 124 years on whether a constitutional amendment was improperly put to voters, Packard says. On two occasions, the court ruled the amendment was constitutional. In State ex rel. Thomson v. Zimmerman, however, the court in 1953 said a referendum question on redistricting did not pass the single amendment requirement and therefore the amendment was thrown out.

Not many people thought McConkey's case would get this far. A professor and heterosexual father of nine, McConkey filed suit in Dane County Circuit Court in July. At the time, he had no lawyer and little support. Fair Wisconsin, the organization that led the fight against the gay marriage ban, was not on board.

But Pines ended up offering legal assistance and Fair Wisconsin is now behind the lawsuit.

Packard, for one, is optimistic. "We hope the judge sees it our way."

Gableman touts prayer

Although a May 1 prayer breakfast hosted by Burnett County Sheriff Dean Roland came under fire for violating the separation of church and state, Wisconsin Supreme Court Justice-elect Michael Gableman not only showed up as scheduled as the guest speaker, he applauded the sheriff for defying his critics, according to a local newspaper account.

"Isn't this a great day to be in America, where we can come together to express our faith as we see fit, and isn't this a great morning to be in Burnett County," said Gableman, according to a story by Byron Higgin in the Burnett County Sentinel on May 7.

Gableman, a Burnett County Circuit Court judge, was elected this April to the Wisconsin Supreme Court and will take his seat in August.

According to Higgin's account of the prayer breakfast, Gableman said the citizens of Burnett County "should take good, decent and true pride in the fact our sheriff went forward with this exercise, not only because it's his right," but, by doing so, he is "advancing and maintaining the rights of all of us."

Annie Laurie Gaylor of the Freedom from Religion Foundation, who filed the original complaint asking Roland to disassociate his public office from the prayer service, says Gableman's statements make her leery of the justice-elect's commitment to -- and understanding of-- the U.S. Constitution.

"He's kind of a loose cannon constitutionally," Gaylor said. It's one thing for Sheriff Roland to be fuzzy on matters of constitutional law, she says. But "we do expect someone who runs for the Supreme Court to know the Constitution and revere it instead of dissing it."

Gableman did not return two calls left for him at his Burnett County office. His former campaign manager, Darrin Schmitz, ignored a request for an interview with Gableman, but e-mailed his own statement.

"Justice-elect Gableman stands by Sheriff Roland and the event," Schmitz wrote. "He took the opportunity to express gratitude that we live in a country where people are free to choose to either worship or not worship. That freedom is a hallmark of our nation and can be exercised at the discretion of each individual citizen. No one should be made to feel threatened for gathering with friends to share their faith."

Responds Gaylor: "This is not a private exercise of religion. The state does not get involved in the business of religion or worship. It can't host prayer breakfasts."

Judith Davidoff  —  5/23/2008 5:14 pm