WI gay marriage ban challenge OK

Judge says vote's wording "constitutionally defective"
Mike Miller — 11/29/2007 11:37 am

A University of Wisconsin-Oshkosh political science teacher's legal challenge to a state constitutional amendment banning gay marriage and civil unions can proceed, a Dane County circuit judge ruled Wednesday, throwing out a motion by the state to dismiss the lawsuit.

Judge Richard Niess ruled that William McConkey, an instructor, had legal standing to file the challenge to the ban, which was approved by 59 percent of Wisconsin voters in a referendum after receiving approval by consecutive sessions of the Legislature.

McConkey was representing himself when he filed the lawsuit last July, but in oral arguments Wednesday he was represented by longtime Madison lawyer Lester Pines. Pines said after the hearing that it is likely that he will continue to represent McConkey.

McConkey, of Baileys Harbor, is challenging the new constitutional amendment on the grounds the question put to voters essentially asked two questions in one, which violates another section of the state Constitution that says the people of the state must have the opportunity to vote for each question separately when amending the Constitution.

Assistant Attorney General Thomas Balistreri, who represents the state, filed a motion to dismiss the suit on the grounds that McConkey lacked legal standing to bring the action because he suffered no harm as a result of the amendment. Balistreri said even if McConkey could show his rights as a voter were violated because two questions were wrapped into one, "that's not enough for standing. You have to have harm as a result of the violation," he said.

McConkey, who described himself as a "Christian, straight, married" father of nine and grandfather of seven when he filed the lawsuit, is not directly affected by the ban on gay marriages or the ban on civil unions. But Pines argued that the proposed amendment violated the Wisconsin Constitution because voters had to endorse either both concepts in the question or neither, and therefore were deprived of their rights to oppose one or the other.

McConkey has standing to proceed in the lawsuit, Pines said, because his voting rights were violated.

Such legal arguments are usually supported by lawyers from each side citing previous cases in Wisconsin courts, or the federal courts, but a paucity of such cases left Niess with little guidance on the issue.

But he agreed with the argument posed by Pines that by containing two propositions in the same question -- banning gay marriages and banning civil unions -- the people were denied the right to vote on each.

"I believe there is a demonstrable injury to any voter who is required to vote on a question that is constitutionally defective," Niess said. "Voting is the very bedrock, the very lifeblood of the democracy we have," and needs to be protected "above all," the judge said.

The ruling means the lawsuit, in which McConkey's central argument is that the amendment violates the U.S. Constitution's guarantee of equal protections under law, can continue. It does not indicate what the eventual outcome will be.

The Wisconsin Family Council joined the state in seeking dismissal of the suit, filing a friend of the court brief.