By Aldrich M. Tan • of The Northwestern

May 30, 2008

Opening arguments start today as a University of Wisconsin-Oshkosh professor challenges the state marriage amendment.

Bill McConkey filed a 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. "That is already a slippery slope to be on."

The 14th Amendment provides for equal protection under the law. Bill Cosh, communications officer for State Attorney General J.B. Van Hollen, said his office plans to vigorously defending the state's marriage law in Dane County Circuit Court.

"We are saying that the constitutional amendment passed by the voters was properly placed on the ballot," Cosh said.

McConkey said the process that the language the legislature used in the ballot measure is 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."

He said the first subject defines what marriage shall be and who participates in it. The second portion addresses not only same-sex couples, but also gender-neutral friends living together, couples who do not get married and also siblings.

The brief filed by Assistant Attorney General Thomas Balistreri cites an annotation in the amendment that says the legislature "can submit distinct propositions…as one constitutional amendment if they relate to the same subject matter."

The ballot question posed two years ago is reasonably related to the same general purpose of defining marriage by defining what is marriage and what is not, Balistreri said in his brief.

The Madison-based Wisconsin Family Council filed a motion through the Alliance Defense Fund, a member of the religious-based Evangelical Council for Financial Accountability, to make an appearance during the hearing.

Julaine Appling, CEO of the Wisconsin Family Council, called McConkey's suit "a frivolous use of taxpayer money."

"I think it is arrogant to say that people did not know what they were voting for," Appling said. "Nevertheless, the people who try to redefine marriage are using courts to get their way."

McConkey, who has a gay daughter, said 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.

"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.

— Aldrich M. Tan: (920) 426-6663 or atan@thenorthwestern.com.