Marriage amendment survives first challenge

Judge Richard Niess' decision to reject a challenge to the manner in which Wisconsin's amendment banning same sex marriage was enacted is not surprising. The issue before the court was whether the amendment, which provides that "only a marriage between one man and one women shall be valid or recognized in the state" and that a " legal status identical or substantially similar to that of marriage for unmarried individuals" shall also not be valid or recognized, should have been broken into two and voted upon separately. That argument was based upon Art. XII, sec. 12, which requires that "that if more than one amendment be submitted, they shall be submitted in such manner that the people may vote for or against such
amendments separately." The idea was that the amendment banned both same sex marriage and civil unions and these ought to be regarded as separate amendments.

The problem with that view is that requiring separate votes one separate but related propositions would probably invalidate most of the amendments to the state constitution, some of which are far more complex and contain multiple provisions expressing different legal principles. Thus, the Wisconsin Supreme Court has held that "[i]t is within the discretion of the legislature to submit several distinct propositions to the electorate as one constitutional amendment if they relate to the same subject matter and are designed to accomplish one general purpose."

Under that standard, rejection of the Art. XII, sec. 2 challenge was an easy matter.

It is still possible that someone will challenge the amendment as contrary to the federal constitution (I think that challenge will be unsuccessful) and, of course, there are a series of potential questions as to its scope.