Courts Could Still Be Called On In Marriage Amendment

By: Melissa Wollering
By: Melissa Wollering

Legal experts say the same sex marriage amendment may end up doing the opposite of what it was intended to. On Tuesday, the ban passed statewide, despite strong opposition in Dane County, where voters rejected it by a two-to-one margin. Still, the courts could end up interpreting the state constitution after all.

If the amendment failed, any future same sex marriage lawsuit would have been decided by the seven member Wisconsin Supreme Court.

Now the court will be bound to uphold the natural definition of marriage, but that may not stop them from taking up issues surrounding domestic partner benefits.

Clinical Assistant Law Professor Leslie Shear helps UW students explore any number of interpretations of state law. After seeing Tuesday's marriage amendment pass, Shear says defining marriage is far from over.

"This is really the beginning, it's not the end," says Shear.

Madison City Attorney Michael May says the amendment could generate a lot of work for lawyers. He says lawyers may try to draft agreements to get around the amendment's language. May also points out that courts cannot challenge that marriage must be between a man and woman, but the amendment's second sentence poses other problems.

"The part that is sort of the unequal rights amendment says that you can't have rights that are substantially similar to marriage, that's an open invitation for courts to stand in."

Representative Mark Gundrum, the amendment's main author, says its purpose is actually the opposite.

"It'll do what it's supposed to do, tie the hands of activist judges," says Gundrum.

Michael May says no one knows how the courts would rule in domestic partner benefits disputes and the very premise of the new two-part amendment could come into question in another way.

"There is a legal theory that an amendment to the constitution can only have one subject and an argument could be made that this really had two subjects to it," says May.

Michael May says one could argue that the second clause of this amendment changed another part of the state constitution indirectly.

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