Friday, May 30, 2008 --- 5:15 p.m.

A U-W Oshkosh instructor's battle with the state over a recent referendum on gay marriage is over, for now.

Nearly one year ago William McConkey filed a suit against the state's two highest ranking officials, Governor Jim Doyle and Attorney General J.B. Van Hollen.

He argued that the November 2006 referendum on gay marriage was unconstitutional. In court Friday the judge heard both arguments, and made his decision.

"This challenge is brought on behalf of the voters on this state," said McConkey's attorney Lester Pines to start off the hearing.

In July of 2007, McConkey filed a suit challenging the November 2006 state referendum on gay marriage, which passed with 59 percent of the vote.

McConkey says the amendment violated the Single Subject Rule of the Wisconsin Constitution, which says Amendments from the legislature must be, "In such a manner that the people may vote for or against such amendments separately."

Added Pines, "It certainly defines what marriage is in the first section. But the second section is not the obverse of the first. The second section goes on to address something that is different."

The referendum stated, "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." The defense says it's constitutional, since the two parts are related.

"The proposition in the amendment is marriage is," said defense attorney Thomas Balistreri. "The second sentence is parallel to is and says what is not recognized as a valid marriage. These are just flip sides of the same coin."

After more than an hour of testimony the judge handed down his decision.

"The marriage amendment as submitted to the voters did not violate the single amendment requirement set forth in article 12 section 2 of the Wisconsin Constitution," said Judge Richard Niess. "Judgment is entered in favor of defendant J.B. Van Hollen."

"I am obviously disappointed," said McConkey after the trial. "There is an old saying that applies here. When the elephants fight it is the grass that suffers. The whole point has been overlooked. And that is that the people are supposed to have deference over the legislature. Not the other way around."

McConkey's adult daughter is a lesbian, but he says he would fight this referendum anyway. He said that he has to talk to his lawyers but an appeal is likely.

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Friday, May 30, 2008 --- 3:50 p.m.

According to a news release from the office of the attorney general:

MADISON, Wis. – Ruling from the bench today, Dane County Circuit Court Judge Richard G. Niess upheld Wisconsin’s Marriage Amendment in the case McConkey v. Van Hollen. The decision dismisses a legal challenge questioning whether or not Wisconsin’s marriage amendment had been properly placed before the voters.

“I’m pleased that we were able to prevail today and that the Court adopted our arguments,” said Van Hollen. “We argued that the marriage amendment was properly submitted. Today’s ruling defeats a legal challenge that was aimed at undermining the will of Wisconsin voters.”

At issue before the Court was whether the marriage amendment as submitted to the voters during the November 2006 elections met the State Constitution’s requirements for amending the Constitution. Judge Niess found that the marriage amendment ballot question did not violate the constitutional requirement that each ballot question contain only one amendment. Judge Niess found that the question was a single amendment because the propositions contained in the text related to the same subject matter and were designed to accomplish the same general purpose.

“As Wisconsin’s Attorney General, I am committed to vigorously defending the state’s constitution,” said Van Hollen. “In this case, the Legislature acted well within its constitutional discretion in forming the ballot question.”

Assistant Attorney General Thomas Balistreri represented the state in this case.

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Friday, May 30, 2008 --- 11:50 a.m.

MADISON, Wis. (AP) -- A Wisconsin judge has upheld the state's constitutional ban on gay marriage.

Dane County Circuit Court Judge Richard Niess says a referendum question put to voters in 2006 was not procedurally defective.

He dismissed a lawsuit brought by a University of Wisconsin-Oshkosh political science instructor claiming the question illegally put two issues to voters at the same time.

The question asked voters whether to rewrite the constitution to define marriage as between one man and one woman and outlaw the state from granting a similar legal status to unmarried individuals.

Critics said the last clause banned civil unions.

Niess says the questions were "two sides of the same coin."