A Wisconsin appeals court has punted the question of whether the state’s 2006 ban on same-sex marriage is constitutional, due to a technicality in its wording Now it’s up to the state’s Supreme Court.
A referendum to define marriage in Wisconsin was put before the state’s voters in November of 2006. However, the referendum had two parts: the referendum asked whether the state constitution should be rewritten to define marriage as between one man and one woman; and the referendum asked whether the state should be prohibited from granting the same legal status to unmarried individuals that married couples have. The referendum passed 59 to 41 percent. William McConkey challenged the ban, filing a lawsuit in Dane County Circuit Court in 2007 and arguing that the dual questions in the referendum were illegal under an existing provision in the Wisconsin Constitution, referred to as the “single subject rule.” This provision prohibits referendums from containing multiple questions to be answered by a single vote.
It’s unclear if a pro-gay ruling by the Court would legalize same-sex marriage or if it would merely strike down the referendum. The Court can also decline to review the case at all.