The constitutionality of domestic partnership status

One of the unfortunate aspects of legislative process in Wisconsin is that so much major policy that is either unrelated or tangentially related to appropriations is made in the budget bill. This results in a lack of public scrutiny and debate and, in my view, too much logrolling. It empowers the ability of legislative leaders - as opposed to constituents - to twist the arms of backbenchers. It's not a Republican or Democratic thing. It happens no matter which party is in power.

Among other major policy initiatives in this year's budget bill are the creation of a domestic partnership status for same sex couple and the extension of health care and other benefits to a household member of state employees with whom the employee says he or she shares financially responsibly. The latter is clearly targeted for gay and lesbian couples although it is not limited to them.

The latter proposal is bad policy but does not violate the marriage amendment. It confers a rather limited benefit on a basis that is not substantially similar to marriage. An unmarried state employee could share her benefits with her roommate in return, say, for a reduction in her share of the rent. (That's one of the things that makes it bad policy.) Proponents of the amendment (including me) repeatedly said that such benefits would not violate it.

The former proposal does violate the amendment. While the reasons that I believe this to be so are more fully stated in a forthcoming paper co-authored with my former student Daniel Suhr, the essential problem is that it creates - it is intended to create - a status with the same social meaning as marriage.

Those who defend the new domestic partnership status argue that it does not confer substantially all of the legal incidents of marriage and they are right about that. While I don't have room to specify what it does and does not do, it omits certain of the incidents of marriage that create legal claims by one spouse against the other. Domestic partners need not get divorced, are not subject to Wisconsin's system and are not obligated to support one another.

In my view, determining whether a new status is substantially similar to amendment is not a simple matter of calculating the percentage of legal incidents that it shares with marriage. The reason I believe that has to do with the nature of the judgment that voters necessarily made when the amendment passed.

We know that the purpose of the amendment was not simply to reserve the term "marriage" for heterosexual relationships. Had that been the purpose (and there are constitutional amendments in a number of states that do only that), it would have been unnecessary to include the "second sentence" prohibiting the creation of a status "substantially similar" to marriage.

In the paper, Daniel and I consider why voters would have passed that second sentence. There is little or no evidence in the ratification history that they were motivated by animus toward gays and lesbians. Rather the debate was almost entirely about "saving" heterosexual marriage. It was about what the recognition of homosexual marriage (or its equivalent) would "do to" heterosexual marriage as an institution.

The only way in which a status equivalent to marriage for same sex couples could do anything to marriage is by altering its social meaning, i.e., by contributing to changes in the way that society views marriage. This would, proponents argued, change the privileged status enjoyed by marriage, alter the way in which marital partners view it and create pressure for changes in its legal incidents.

Opponents of the amendment argued that this could not possibly happen; often acting as if they could not understand what proponents were saying. (In fact, many sophisticated academic proponents of same sex marriage expect it to lead exactly where the amendment's supporters feared it would lead and support the redefinition of marriage for that very reason.)

But it no longer matters who was right - at least for interpretive purposes - because the amendment passed. Even if the arguments of amendment supporters were wrong, the voters concluded otherwise. For that reason, we argue, any status that is intended to confer upon sexual relationships other than those between one man and one woman a social meaning that is substantially similar to marriage is prohibited.

Toting up the conferral of benefits is part of the process of identifying such a status but it is not dispositive. If a status is structured in a way to suggest that it is a form of marriage for relationships other than those between one man and woman, it presents the risks to marriage that the voters (rightly or wrongly) wanted to avert.

The proposed domestic partnership status, it seems to me, is intended to and will have precisely that effect. The conditions for entry into a domestic partnership mirror the conditions for entry into marriage save that the partners must be of the same sex. While the status does not include all of the incidents of marriage, it includes enough to be seen as a status mimicking marriage.

In fact, I would argue, what it excludes suggests precisely the harms feared by the amendments proponents. The legally "sticky" nature of marriage are a consequence of its potentially procreative nature. Marriage places financial obligations - and does not simply confer benefits - upon the partners because of the economic vulnerabilities associated with childbearing and childraising. It is not surprising that these obligations would be less critical for relationships that are not procreative and in which children are far less likely to be present. Even if same sex couples adopt children, it requires an intentional choice which is not always present when heterosexual couples make babies. The need for a choice permits - for those who wish to do so - the voluntary assumption of financial obligations toward one another. It is less essential that these obligations be intrinsic to the relationship.

The creation of a status for same sex couples that is "their form of marriage" and which does not require these commitments will certainly create pressure to eliminate these commitments for heterosexual couples and will further undercut the notion that marital commitments ought to be "sticky" in this way and must include these mutual commitments and financial intertwining.

We are aware of statements by some proponents of the amendment during the ratification process that are now used by supporters of the domestic partnership scheme. Upon close examination, most of these statements were not about the creation of the type of status about to be enacted or are simply irreconcilable with what we conclude to be the unavoidable public meaning of the amendment.

The better argument in favor of the constitutionality of domestic partnership status is that the exclusion of a mutual obligation of support, the lack of a requirement for divorce and absence of community property will preclude these domestic partnerships from being seen as a "marriage-like" relationship. I think that claim is belied both by the nature of the new status and the reasons that its supporters give for its enactment, i.e., recognition of same sex unions as "equal" to marital unions is one of the principal reasons for its creation.