Top Stories Milwaukee

The state’s ban on gay marriage should be tossed aside because lawmakers did not take the right steps to amend the Wisconsin Constitution, a lawyer argued Tuesday before the state Supreme Court.

Voters must be asked separately about every change proposed to the constitution, attorney Lester Pines argued. But in 2006, they were asked one question with two parts — whether the state should ban same-sex marriage and whether it should ban similar arrangements, such as civil unions. Voters didn’t have a chance to vote “no” to one part and “yes” to the other, so the entire amendment should be thrown out, Pines said.

“This case is about the rights of voters,” Pines said.

But Assistant Attorney General Lewis Beilin told the court the constitution was properly amended because the two parts of the amendment were closely related and part of the same general purpose — “to preserve the unique status of marriage.”

The court is expected to rule by the summer.

The case centers on the technical process of amending the constitution and does not hinge on the merits of whether gay couples should be allowed to marry or enter into civil unions. If the court eliminates the constitutional ban, gay marriage would still be illegal because of a state law.

The arguments came the same day voters in Maine went to the polls on a referendum to repeal a law allowing gay marriage in that state. Five other states allow gay marriage, according to the National Conference of

State Legislatures — Massachusetts, Connecticut, Iowa, Vermont and, beginning in January, New Hampshire.

Wisconsin voters adopted the amendment in 2006 with 59 percent of the vote.

Bill McConkey, a University of Wisconsin-Oshkosh political science instructor from Door County, in 2007 sued the state in Dane County Circuit Court. McConkey, who has a lesbian daughter, lost the case and appealed.

The appeals court didn’t rule on the case and asked the Supreme Court to take it up because of its statewide significance.

The state argued McConkey didn’t have standing to sue because he has said he would have voted “no” on both questions if the ballot measure had been written in two parts. That concession means he wasn’t harmed by the way the measure was written because he wouldn’t have voted “yes” on one question and “no” on the other.

Pines countered that McConkey might have been able to persuade some people to vote “no” on at least one question if two had been offered. But some of the justices remained skeptical.

“I’m somewhat concerned that this court not adopt a rule that every single voter would have a right to challenge a constitutional amendment,” Justice N. Patrick Crooks said.

Justice David Prosser said he was worried about the possibility of a voter challenging an amendment that had been passed decades ago.

This summer, lawmakers and Gov. Jim Doyle set a new law that allows gay couples to establish domestic registries so they can receive about 40 of the 150 rights afforded married couples, such as hospital visitation rights.

In July, Wisconsin Family Action and others asked the Supreme Court to overturn the law, saying it violated the constitutional amendment. The court has asked for briefs in the case, but has not decided whether to take it up.

Republican Attorney General J.B. Van Hollen has refused to defend the domestic partnership law. Doyle, a Democrat, hired Pines to defend the state in that case.

If the court finds the constitutional amendment was improperly adopted, the lawsuit over the domestic partnerships would face a major obstacle.