Wisconsin is not likely to follow suit anytime soon on legalizing same-sex marriage, despite the actions of neighboring states and shifting public sentiment.
That’s because voters in 2006 approved a constitutional amendment defining marriage as between one man and one woman and denying legal status “identical or substantially similar to that of marriage.”
Reversing that could take the better part of a decade, according to equal rights advocates, and only a broad ruling by the U.S. Supreme Court on either of two pending cases — generally considered unlikely — would affect Wisconsin.
Nevertheless, gay rights advocates hailed Minnesota’s passage Monday of a same-sex marriage bill.
“We’re very excited about Minnesota and the victory there,” said Katie Belanger, executive director of Fair Wisconsin, a nonprofit advocacy group for lesbian, gay, bisexual and transgender rights. “It highlights how quickly our country is moving.”
Though Fair Wisconsin is committed to overturning the state’s ban on same-sex marriage and civil unions, Belanger acknowledged the process would take at least four or five years even with a supportive Legislature.
With both the state House and Senate under GOP control, “it becomes an even longer process,” she said.
To undo the 2006 ban would require passage of a new amendment. That requires passage of an identical bill in two consecutive legislative sessions, followed by majority approval in a statewide voter referendum. The process generally takes about three years, though it can be accomplished in as few as nine months, according to the Legislative Reference Bureau.
Wisconsin voters approved 142 constitutional amendments in the state’s first 160 years, rejecting another 32 proposed amendments. The most recent amendment, approved in 2008, limits the governor’s line-item veto power, which was granted by a 1930 amendment.
But even if such an amendment passed, there’s a state law defining marriage as between “a husband and wife” that would need to be repealed or amended.
Belanger notes public sentiment is changing fast.
Two polls taken earlier this year show support for same-sex marriage has grown substantially since the 2006 amendment — with 42 to 46 percent now in favor — but still falls short of the majority needed to overturn the amendment.
In the mean time, she said, Fair Wisconsin has focused on local-level politics, helping to pass domestic partnership ordinances in communities including Appleton, Janesville, Kenosha and Eau Claire.
Chances are slim, too, that two cases before the U.S. Supreme Court — a challenge to California’s ban on same-sex marriage and to the federal Defense of Marriage Act — would affect Wisconsin’s ban, gay rights advocates and legal scholars said.
The court could take a number of actions in either case that would invalidate all or parts of those laws but not affect Wisconsin’s, said Andrew Coan, an assistant professor at the University of Wisconsin Law School in Madison. For example, it might determine California’s ban is unconstitutional because it rescinded a right already granted; that would leave other states’ bans intact.
“Short of a really broad ruling … neither of these cases is likely to have an immediate impact on the state of Wisconsin,” Coan said.
However, he said, it’s likely a ruling on one or both cases could provide a precedent for a future challenge.
Though she doesn’t expect the court to rule in a way that directly furthers the cause of same-sex marriage in Wisconsin, Belanger said she is optimistic the rulings will be a positive step in swaying public and legal opinions.