In one of her last official acts, outgoing Attorney General Peg Lautenschlager has issued an advisory opinion on whether Art. I, sec. 13 of the Wisconsin Constitution (the newly enacted marriage amendment)prohibits the City of Madison's domestic partner registry or its extension of benefits to the domestic partners of city employees. She concludes that it does not.
I am a bit amused by the certainty of this opinion as opposed to her "who knows" description of the amendment before it was passed, but I think she is absolutely right on the issue of domestic partner benefits.
Madison's domestic partner registry is a closer question but given that the city lacks the authority to create a relationship that is substantially similar to marriage, it too may survive the amendment.
What is troubling about the opinion is her indiscriminate reference to something called "domestic partnerships" - a legal status which does not exist. She writes that "neither the Legislature or the people intended to invalidate domestic partnerships" when they passed the amendment.
Well, yes and no. The question is whether these domestic partnerships are substantially similar to marriage. While the opinion acknowledges that and the troubling passages may just be sloppy draftsmanship, the opinion can be read to imply that the legislature could create a "domestic partner" status that confers "most of the same benefits as marriage" because she has found some opinion polls that found a majority of respondents in favor of that shortly before the election. One could see her arguing that civil unions could be created as long as something that is present in marriage is held back.
In supporting the amendment, I argued that it would not invalidate domestic partner benefits. I still say that today.
But I said then - and now - that the amendment prohibits creating something that amounts to "marriage lite." A status that has some of the attributes of marriage won't be prohibited but one that has "most of them" probably will be.
This is in keeping with the purpose of the amendment, i.e., to preserve the traditional understanding of and norms surrounding marriage. If you create an alternative that is "almost" like marriage but called something else and extended in circumstances in which those traditional understandings and mores will almost certainly be absent or devalued, you threaten the institution of marriage itself, just as it been threatened - and harmed - by relaxed attitudes toward, and (most importantly) legal recognitions of, cohabitation.