Ducks, Marriage, and the Common Sense Cliff; Wisconsin’s Domestic Partnership Registry

Via Julaine Appling, WFA president:

The fiscal cliff rightly has us concerned. However, I think America is facing a number of cliffs right now that may be at least as important as, if not more important than, the fiscal cliff.

A recent court decision here in Wisconsin reminds me that we are about to go over the “common sense cliff.” Even judges are teetering on the edge of this cliff.  What’s so important about common sense is that this least common of all the senses centers us, grounds us to reality.  Farmers understand this. They say things like, “If it looks like a duck, quacks like a duck and acts like a duck, then it’s a duck. Doesn’t matter what you want to call it.”

When we fall off the common sense cliff we lose our ability to think rationally and reasonably in light of the clear evidence of everyday life and reality. It’s a very dangerous cliff.

The court case I am referring to is the one I and several members of the board of directors of Wisconsin Family Action filed challenging the constitutionality of the statewide, same-sex-only domestic partnership registry that Governor Doyle and his liberal legislative cronies gave us in the 2009-2010 state budget.  At issue is whether or not a legal status that is identical to or substantially similar to marriage is constitutional.

We lost this case at the Dane County Circuit Court in June 2011, which necessitated an appeal to the Wisconsin Court of Appeals.  Just this past Friday, yes, right before Christmas, the Court of Appeals issued its ruling.  The 3-judge panel who deliberated on this case said they agreed with the lower court.

When I looked at the opinion, I was struck first by what appears to me to be a total disregard for common sense.  The court basically said something is not marriage if it looks like, acts like, and sounds like marriage—it’s something different.  In this case, it’s a domestic partnership.

Here’s how this goes.  Suppose someone asked you how you know you have the legal status of citizen of the United States. Would you say you are a legal citizen because you pay taxes? Or maybe because you qualify for health care privileges? Perhaps it is because you can vote?

Or is it because you were born in the United States or, if you were born out of the country, you were born to parents who are American citizens?  Or perhaps you became a “naturalized citizen.”

If you are tracking this little exercise, you know your legal status of being a citizen of the United States has nothing to do with the benefits or duties of citizenship.  Those things come after the legal status of citizen is attained.  That’s just plain common sense.  A legal status is not defined by benefits or duties you get after you are a citizen.

Here’s another one. Are you a son or daughter of your parents because you are in their will, because you lived in their home, because you helped with the family chores?  Of course not.  You are a son or daughter of your parents because you were born to them and your legal status was determined at the time of your birth or at the time of your legal adoption.  All the other rights, benefits and responsibilities came because of your legal status. Anyone can be in your parents’ will, live in their house, and help with family chores and still not be a son or daughter of your parents.  That’s crazy. It defies common sense.

But that is exactly what the Court of Appeals said about marriage. The court maintains that because the domestic partner registry doesn’t give all the benefits and responsibilities of marriage to the domestic partners, then it’s not marriage. Never mind that the requirements for gaining the legal status of domestic partners are exactly the same for gaining the legal status of marriage in Wisconsin.  Never mind that common sense tells us that benefits and obligations come after, because of, an already-attained legal status. They don’t determine the legal status.  Honestly. If it looks like marriage, acts like marriage, sounds like marriage—it’s marriage.  No matter what the judges say.

I fear this common sense cliff we are about to fall off.  I really do.  It means we are absolutely willing to look at a duck and legally determine it is anything but a duck.  And that’s more than a little dangerous.



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