Does Wisconsin's domestic partnerships law violate the state's constitution?

In 2009 the Wisconsin Supreme Court ruled against a challenge to the state’s domestic partnership law enacted three years after over nearly 2/3rds of Wisconsinites passed Referendum 1, which reads as follows:

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.

Wisconsin Family Action, a pro-family, traditional marriage group with whom I worked with during the National Organization for Marriage’s Summer for Marriage Tour stop in Madison, WI this summer challenged the legality of the domestic partnership registry as in their opinion; it was substantially similar to that of marriage.

Wisconsin banned same-sex marriage
in 2006 with Referendum 1.

Today the same pro-family group is putting forth a second challenge to the registry for same-sex couples on the same grounds: The domestic partnership registry is too similar to marriage and violates the state law created by passage of Referendum 1.

This time the challenge comes only months after the State Supreme Court ruled unanimously to uphold the constitutionality of that very referendum, which was challenged by a political science professor on a technicality that it violated the state’s laws on referendums by posing two questions in one referendum.

So the question is whether or not Wisconsin’s Domestic Partnership law is substantially similar to marriage or not and so I’d like to put forth the information to compare the two and let you decide.

Besides the fact that the applications for a marriage licenses and the application for domestic partnerships are both obtained from the County Clerk, the similarities between the two don’t stop at that.

Wisconsin state statute 765.01 states that “Marriage, so far as its validity at law is concerned, is a civil contract, to which the consent of the parties capable in law of contracting is essential, and which creates the legal status of husband and wife.”

In the declaration of policy for the state’s domestic partnership law, the state states the following:

The legislature finds that it is in the interests of the citizens of this state to establish and provide the parameters for a legal status of domestic partnership.

So what’s the difference between the two? The marriage law seems to specify husband and wife but besides that the two civil contracts create a “legal status” between two people. I’m quite sure that when the Wisconsin State Legislature drafted its first marriage laws, it found that it was “in the interests of the citizens of this state to establish and provide the parameters” of such legal status, too.

Moving along. Wisconsin state statute 765.02(1) states that “Every person who has attained the age of 18 years may marry if otherwise competent.”

Wisconsin’s domestic partnership has a similar requirement. Two individuals may form a domestic partnership if they satisfy all of the following criteria:

(1) Each individual is at least 18 years old and capable of consenting to the domestic partnership.

So in marriage and domestic partnerships, both parties have to be at least 18 years of age. The law stipulates that both parties are “competent” for marriage and “capable of consenting” for domestic partnerships. No big differences there. Note: The above only shows one of the criteria for a domestic partnership; I’ll go through the rest now.

Next we move on to other issues of eligibility. For example, the issue of whether or not either of the aspiring marriage applicants are currently married – or if the person they want to marry is a close-blood relative. 

Well, as you would expect, Wisconsin state statute 765.03 states that “No marriage shall be contracted while either of the parties has a husband or wife living, nor between persons who are nearer of kin than 2nd cousins…”

Wisconsin’s domestic partnership law has similar wordage:

(2)    Neither individual is married to, or in a domestic partnership with, another individual.

(4)    The 2 individuals are not nearer of kin to each other than 2nd cousins, whether of the whole or half blood or by adoption.

Above criteria 2 and 4 are mirror images of Wisconsin’s marriage law, going so far as to bring in the specificity about one’s second cousin. Look at the fourth criteria closely. It is almost as though they copy and pasted the marriage law. They both have the awkwardly sounding “nearer of kin than…” in reference to the second cousins.

Criteria three of the eligibility requirements for entering into a domestic partnership at first appeared to be a difference between the two. But honestly speaking, a criterion that you live together (literally “share a common residence” in the partnership law) goes without saying for marriage. I mean, it’s what married couples do. They live together. They have families. So there’s no difference there, either.

Criterion number five of the domestic partnership law is where a significant difference between marriage and domestic partnership sticks out like a car with five wheels. Criterion number five requires that both parties applying for a domestic partnership be of the same sex.

What? The first thing I thought was what about heterosexuals? How can, on one hand, the LGBT community be campaigning across the country against marriage laws which exclude same-sex couples but on the other hand support this domestic partnership law with excludes opposite sex couples?

It doesn’t matter that marriage may be ‘better’. Quite surely it is, to some. But shouldn’t opposite sex couples have the right to enter into a domestic partnership with their partner? What if they don’t like marriage? What if they were married once, got divorced and swore they’d never get married again, only to find and fall in love with someone else down the road?

I’ll have to revisit this issue later on. For now I want to continue comparing (there’s really not much contrasting going on, if you’ve noticed) marriage and Wisconsin’s domestic partnership law.

Wisconsin state statute 765.08(1) states that: “Except as provided in sub. (2), no marriage license may be issued within 5 days of application for the marriage license.”

That’s funny because I read that same thing in the domestic partnership law.

Except as provided in subd. 2., the county clerk may not issue a declaration of domestic partnership until at least 5 days after receiving the application for the declaration of domestic partnership.

Guess what? Subsection 2 is also very similar between the two laws.

Subsection 2 for the marriage law reads:

The county clerk may, at his or her discretion, issue a marriage license within less than 5 days after application if the applicant pays an additional fee of not more than $25 to cover any increased processing cost incurred by the county. The county clerk shall pay this fee into the county treasury.

Subsection 2 for the domestic partnership law reads:

The county clerk may, at his or her discretion, issue a declaration of domestic partnership less than 5 days after application if the applicant pays an additional fee of not more than $10 to cover any increased processing cost incurred by the county. The county clerk shall pay this fee into the county treasury.

Now that’s as word-for-word as it gets, folks. Oh, minus the extra fifteen dollars a couple seeking to get married must pay for expedited services. Please don’t tell me the difference between marriage and domestic partnership in Wisconsin lay in that little difference.

Wisconsin state statute 765.09(2) reads: “No marriage license may be issued unless the application for it is subscribed by the parties intending to intermarry, contains the social security number of each party who has a social security number and is filed with the clerk who issues the marriage license.”

Would it surprise you to find out that the domestic partnership law is a mirror image of that, too? I would hope that by this time, it would not be a surprise.

No declaration of domestic partnership may be issued unless the application for it is subscribed to by the parties intending to form the domestic partnership; it contains the social security number of each party who has a social security number; and it is filed with the clerk who issues the declaration of domestic partnership.

This is getting quite redundant, due to the fact that marriage and domestic partnership in Wisconsin are one in the same, so I’m going to pick up the pace a little. I’m going to lay out the facts and then the game will be to see if at the end of this article, you can, with a straight face, say that marriage and domestic partnerships in Wisconsin are “substantially different” as the law requires.

The marriage and domestic partnership laws both require that both parties “shall present satisfactory, documentary proof of identification and residence and shall swear to or affirm the application before the clerk who is to issue [it]. This is from Wisconsin state statute 765.09(3a).

Both the marriage and domestic partnership laws require that the respective application “shall contain the social security number of each party, as well as any other informational items,” that some government office may require. This is from the same Wisconsin state statute above.

That state statute goes on to finish “The portion of the marriage application form that is collected for statistical purposes only shall indicate that the address of the marriage license applicant may be provided by a county clerk to a law enforcement officer under the conditions specified under s. 765.20 (2).” And of course, word-for-word, with the replacement of “marriage license” with “application [for a domestic partnership]”, the domestic partnership law says the same thing. Word for word.

According to both marriage law and the domestic partnership law, both couples “must submit a certified copy of their birth certificate” but the law provides an out for both couples if a certified copy of their birth certificate is “unobtainable”. In such a case, both the couple applying for a marriage license and a couple applying for a domestic partnership may submit “other satisfactory documentary proof” of the requisite facts.

And what if the county clerk is not satisfied with the documentary proof provided? Well in that case, law stipulates that for both marriage and domestic partnership applications, the following: “Whenever the clerk is not satisfied with the documentary proof presented, he or she shall submit the presented proof to a judge of a court of record in the county of application for an opinion as to its sufficiency.”

So far the differences between marriage and domestic partnership in Wisconsin are the fact that 1) marriage is between a male and female and a domestic partnership is between two people of the same sex and 2) a more expensive fee for expedited services if you want to get married. Substantially different or substantially the same?

Not only are the fees to obtain a marriage license and to enter into a domestic partnership, but the way in which the money must be used by the County are identical for marriage applicants and domestic partnership applicants. Well, the domestic partnership law actually says it best:

770.17 Fees to county clerk. Each county clerk shall receive as a fee for each declaration of domestic partnership issued and for each certificate of termination of domestic partnership issued the same amount that the clerk receives for issuing a marriage license under s. 765.15. Of the amount that the clerk receives under this section, the clerk shall pay into the state treasury the same amount that the clerk pays into the state treasury from the fee collected for issuing a marriage license. The remainder shall become a part of the funds of the county. For each declaration of domestic partnership issued and for each certificate of termination of domestic partnership issued, the clerk shall also receive a standard notary fee in the same amount that the clerk receives as a standard notary fee in connection with issuing a marriage license and that may be retained by the clerk if the clerk is operating on a fee or part−fee basis but which otherwise shall become part of the funds of the county.

Information about the state’s domestic partnership law used in this article was obtained here.

Moving beyond the basically identical procedures of obtaining a marriage license and entering into a domestic partnership, it is necessary to go into differences in what benefits are available to domestic partnership couples versus married couples.

Bill 75 from the 2009 Wisconsin General Assembly contains a table of contents on page 6 that outlines the benefits granted to same-sex couples who enter into domestic partnerships.

These benefits include, but are not limited to, victim notification by the Department of Corrections, ownership of property and joint tenancy, health care, power of attorney, consent to autopsies, family and medical leave, and death benefits, among others. The full list can be seen here.

Most importantly, the list of benefits granted to couples in domestic partnerships is categorized by the authors of that very bill as “fairly extensive”. Altogether there are 27 areas of benefits granted.

The authors then go onto point out that there are some areas of family-relationship rights the domestic partnership law does not include. That list is on page 7 of the same Bill 75 and contains 22 areas of benefits not granted.

Altogether there are some 49 areas, or categories of benefits granted to married couples. Couples registered as domestic partnerships have access to 27, or 55% of them. But that is not actually really fair.

After all, two of the areas of “benefits” of family-relationship rights not afforded under the domestic partnership law are under the categories “marriage procedures” and “divorce”. That means same-sex couples have access to 57% of those benefit coverage areas.

Upon stating it’s opinion that the domestic partnership law was not “substantially similar” to marriage, the Legislative Council Staff, charged with the task of assessing whether or not the state’s domestic partnership law was or wasn’t “substantially similar”, the Council had this to say:

However, as noted previously, it cannot be concluded with certainty that a court would draw the same conclusions about the intent of art. XIII, s. 13 or the application of that provision to the domestic partnership proposal. Some uncertainty is inherent in attempting to determine how a court will interpret a constitutional amendment.

So you make the decision. Wisconsin’s same-sex domestic partnership law not only has almost identical procedures and eligibility requirements, but the legal status established through a domestic partnership offers nearly 6-out-of-10 of the benefits afforded to married couples and the domestic partnership status also affects how the couple can file taxes, just like it affects married couples.

The only differences between them, as I pointed out earlier, seem to be a difference in the cost of expedited services, the fact that marriage is restricted to opposite-sex partners and partnerships are restricted to same-sex partners.

Beyond that, registered same-sex couples have a greatly easier ability to terminate their domestic partnership whereas married couples must go through an official divorce. I would content that is a difference not in legal status between domestic partners and married couples but in the termination of said legal status.

Wisconsin Family Action is leading
the fight to protect the integrity of
marriage in the State of Wisconsin.

The new lawsuit filed by Wisconsin Family Action claims that the rights afforded to registered same-sex couples and the procedure for entering into a domestic partnership are too similar to marriage and gay rights groups in Wisconsin have come to the defense of their domestic partnership law.

We laid out our opposition to any form of same-sex relationship recognition in September.