“I’ve often opined that it’s virtually impossible to read the mind of an individual Supreme Court justice, whether at the federal or state level. For sure it’s difficult to read the collective mind of the entire court, especially since the courts get to pretty much make their own rules and, of course, change their own rules. It’s one of the pesky parts of an “independent” judiciary.
As a brief rabbit trail, no branch of our government is truly and completely autonomous. They are independent from one another only to the extent that our checks and balances system allows. Each branch is to have some measure of control over the other. Some seem to think that the legislative branch and the executive branch should have no check on the judiciary. That is not how this Republic was designed to work. Thus, a bill such as the one Representative Dave Craig just had passed in the state Assembly makes sense. I think the senate should get going and pass it too.
Typically what happens is a lawsuit is brought against a law that the state legislature has passed. The lawsuit gets brought in a county circuit court. If a judge there rules that the law is unconstitutional, he or she can then slap an injunction on the law, which means the law cannot be implemented until another judge in the process rules differently and removes the injunction. The appeal process can be extremely protracted in Wisconsin. Rep. Craig’s bill would allow an immediate appeal of the circuit court decision, an action that would immediately remove the injunction until a higher court, either an appeals court or the state Supreme Court, makes a decision on the appeal.
Such a bill is not reducing or infringing upon the independence of the court; it is checking the typically protracted appeals process in matters of duly enacted law by duly elected legislators. Frankly, I think it’s a great example of how our checks and balances should work. For too long, some courts have acted as if they are so independent as to be immune to any legislative checks.
That was a rather lengthy rabbit trail, but it’s an important one.
Now back to the central story. Back in 2010, members of the Wisconsin Family Action board of directors filed a lawsuit in the Dane County Circuit Court, alleging that the same-sex-only, statewide domestic partnership registry that then-Governor Doyle and his legislative cronies passed as a part of the state budget was unconstitutional. The case is known as Appling v. Doyle—and yes, that’s me wearing another hat.
The constitutional amendment in Article 13, Section 13 of the Wisconsin Constitution says no legal status identical to or substantially similar to the legal status of marriage is legal or valid in this state. The domestic partnership registry is at a minimum, substantially similar to marriage. One gets the legal status of “domestic partnership” essentially the exact same way one gets the legal status of “married.” Plaintiffs brought the lawsuit to protect the institution of marriage, the will of Wisconsin voters who voted for the marriage protection amendment, and the Wisconsin constitution.
The plaintiffs lost at the circuit court level, and in 2011 appealed the case to Branch 4 of the Court of Appeals, which headquarters in Madison. In July 2012, the Court of Appeals asked the Supreme Court to take the case directly. In September 2012, the State Supreme Court, without explanation, denied the request.
So, the Court of Appeals issued its decision on Appling v. Doyle the weekend before Christmas last year. I know this will shock you since this was a Madison-based court, but the Court of Appeals agreed with the circuit court that the registry is constitutional. That decision prompted a timely plaintiffs’ appeal in mid-January of this year, this time to the final word in this case, the state Supreme Court.
Until last Friday, we heard nothing from Wisconsin’s highest court on this case. On Friday, plaintiffs discovered quite by accident that last Wednesday the State Supreme Court had decided to take this case. It was fairly obvious the court was playing by its own rules. The decision to take the case was technically made public sometime on June 12 since it was on the state’s online system. My take is the court figured they were under no obligation, according to their rules, to make a big announcement on this—and the longer it stayed off people’s radar screen, the better, they likely reasoned.
What next, you ask? We wait. Again. We pray. Again. As usual, we play by the court’s rules, respecting their independence, knowing they are most assuredly not independent of Almighty God.”