Source: Oshkosh Northwestern, Capital Times
Wisconsin's ban on marriage equality does not violate the state's constitution, Dane County Circuit Judge Richard Niess ruled Friday.

In his decision, Niess said the two questions contained in the constitutional amendment "are two sides of the same coin. They clearly relate to the same subject matter" -- the preservation of marriage. Niess rejected the argument by plaintiff William McConkey that the amendment violated a constitutional prohibition against a referendum posing more than one question to voters.

McConkey said today he was "disappointed" by Niess' ruling.

"(The judge) missed the big picture," he said. "It became an argument on narrow points of the law and not on the voters' ability to function, and I think that was a mistake."

One of McConkey's attorneys, Lester Pines, said he would likely appeal the ruling, Capital Times reports.

But Julaine Appling, director of the Wisconsin Family Council, which submitted a brief in support of the marriage amendment, said in a statement she "couldn't agree more" with Niess' decision.

"Today's ruling affirms the judgment of nearly 60 percent of Wisconsin voters who approved this amendment on November 7, 2006. These voters knew they were voting for one thing: the definition and preservation of marriage in our state."

McConkey, father of nine and a professor at University of Wisconsin-Oshkosh, filed the lawsuit against the state of Wisconsin in July 2007 over the way that the amendment appeared on a ballot in November 2006. The amendment, which passed with 59 percent of the vote, defines marriage as between a man and a woman and any other status that is similar to marriage is not recognized or valid in Wisconsin.

"In the big picture of things, the legislature and the majority voters of Wisconsin singled out a group of people and took away their 14th amendment protections," McConkey said last week. "That is already a slippery slope to be on."

McConkey had originally claimed in his suit that Wisconsin's constitutional amendment violated the equal protection clause of the U.S. Constitution, but Niess ruled in September that McConkey did not have standing to sue on that issue. But the judge allowed McConkey to proceed on the single-amendment requirement.

In that part of the case, McConkey argued that that the language used by legislature in the ballot measure was unconstitutional because it did not give the people an opportunity to vote on two separate subjects. According to Article 12 of the State Constitution, the legislature must submit amendments "in such a manner that the people may vote for or against such amendments separately."

The Department of Justice argued in its brief, on the other hand, that the marriage amendment is constitutional because its parts relate to the same subject matter and are designed to accomplish the same thing.

Therefore, the DOJ concluded, the Legislature, which passed the amendment twice in consecutive sessions before putting it on the ballot, is "'not compelled to submit as separate amendments the separate propositions necessary to accomplish a single purpose.'"

The Wisconsin Supreme Court has ruled only three times in the last 125 years on whether a constitutional amendment was improperly put to voters, Packard said.

On two occasions, the court ruled the amendment was fine. In a 1953 case, however, the court said that a referendum question on redistricting did not pass the single amendment requirement and therefore the amendment was ruled not to be an amendment, Madison's Capital Times reports.

McConkey, who has a gay daughter, explained to Oshkosh Northwestern that he stepped down from serving as the PFLAG Oshkosh chapter president to go forward with the lawsuit. The nonprofit organization cannot stand for or against any politician.

McConkey said he plans to be very politically active against the marriage amendment. He spoke to the Northwestern before the judge had issued his ruling.

"It's unconstitutional because it struck at the democratic process, but it also struck at my own family and I could not tolerate it," he said.

Full article: UWO Professor challenges the marriage amendment | thenorthwestern.com | Oshkosh Northwestern