Gay Marriage Challenge Denied

Bill McConkey

Bill McConkey’s challenge to the gay marriage constitutional amendment passed by Wisconsin voters two years ago has failed.

McConkey, a Baileys Harbor resident and UW-Oshkosh professor, had challenged the legality of the amendment based on the phrasing of the question, arguing it was improperly presented to the voters.

The Wisconsin constitution, in Article XII, Section 1, states that “…if more than one amendment be submitted, they should be submitted in such a manner that the people may vote for or against such amendments separately.”

The amendment presented to voters on the November 2006 ballot read, “Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.”

McConkey, a Republican, argued the second sentence confused voters because line one addresses marriage, while line two address civil unions, and the two are not interchangeable in the minds of voters. He points to surveys indicating voters would approve of civil unions on their own, but not gay marriage. A 2006 survey done by Fairbank, Maslen, Maulin and Associates that found only 37 percent of respondents would approve of denying legal status to unions not called marriage but substantially similar to that of marriage.

Dane County Circuit Judge Richard G. Niess ruled against McConkey.

“I was disappointed,” McConkey said. “I have a lot of respect for Judge Niess, but the ruling was on a very narrow interpretation of the law. I vehemently disagree to his interpretation of the case and we’re going to appeal.”

Niess ruled that the legislature has discretion to decide what goes into an amendment, but McConkey said he disagrees “if they’re going to override the protections of the constitution.”

The amendment passed easily in Wisconsin, 59 to 41 percent, even though gay rights groups mounted a staunch campaign to defeat it.

The lawsuit was filed against Attorney General J.B. Van Hollen and defended by the state Department of Justice.

McConkey has 90 days to file his appeal, and said he plans on meeting with his attorney next week to begin the process.