Judge keeps Wisconsin's gay marriage ban

MADISON - A judge upheld Wisconsin's constitutional ban on gay marriage Friday, rejecting a challenge that claimed the 2006 referendum was improperly put to voters.

Dane County Circuit Judge Richard Niess dismissed a lawsuit brought by a University of Wisconsin-Oshkosh political science instructor claiming the referendum wrongly put two issues to voters at the same time.

The referendum 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. Nearly 60 percent of voters approved.

"Today's ruling defeats a legal challenge that was aimed at undermining the will of Wisconsin voters," said Atty. Gen. J.B. Van Hollen, a Republican whose office defended the amendment.

Critics said lawmakers unfairly wrapped two questions into one amendment: whether to ban gay marriage and whether to ban civil unions. The lawsuit brought by William McConkey of Baileys Harbor claimed the amendment violated a clause in the state constitution limiting referendum questions to a single subject.

Niess, appointed by Democratic Gov. Jim Doyle in 2004, disagreed in a ruling from the bench after hearing oral arguments on Friday.

"The two propositions ... are two sides of the same coin," he said. "They clearly relate to the same subject matter and further the same purpose: the preservation and protection of the unique and historical status of traditional marriage."

McConkey, a married, straight man who has a gay daughter, said he would ask his lawyers to file an appeal. If so, the state Court of Appeals would be required to review the case.

"I'm disappointed, very disappointed," he said. "I'm not totally surprised because it was based on a narrow interpretation of the law. But if you look at the big picture and the rights of people, I'm terribly disappointed."

Niess noted his ruling did not address whether the amendment was good public policy or whether it violated the U.S. Constitution's equal protection clause. He said the case only involved a "limited, and purely procedural challenge to the marriage amendment."

Niess cited an 1882 Wisconsin Supreme Court ruling that upheld a referendum that changed the Legislature's session from one year to two years and granted lawmakers a big pay increase. Not every clause of a sentence requires a separate vote, as long as they deal with the same subject, he said.

The ruling was hailed by the Wisconsin Family Council, the nonprofit successor to the group that championed the amendment's passage in 2006.

"During the campaign we said the first sentence defines the word marriage but the second sentence protects the institution of marriage. It's a package deal," chief executive Julaine Appling said. "Not only did the judge get this but so did 60 percent of the people."

"I'm very encouraged that he recognized the unique place of marriage in society," she added later. "That is a very important statement that should not be lost on anyone."

McConkey's lawyer, Lester Pines, called an appeal "definitely possible" and said he would have 90 days to file after the case is officially dismissed. Niess said during the hearing the Supreme Court would likely ultimately decide the issue.

A ruling striking down the amendment would not legalize gay marriage in Wisconsin because state law still defines marriage as a union between a husband and a wife. Instead, gay rights advocates say, such a ruling could pave the way for lawmakers to allow gay marriage or for additional lawsuits seeking that right.

Fair Wisconsin, the state's largest gay rights group, said it was disappointed in the ruling but determined to continue fighting the amendment in the courts and Legislature.

"This process will likely take years," executive director Glenn Carlson wrote in an e-mail to members. "In the meantime, we will be working with our allies around the state to ensure that gay and lesbian couples receive all possible protections available. We WILL prevail!!"