                                                                   2014 WI 96

                  SUPREME COURT             OF    WISCONSIN
CASE NO.:               2011AP1572
COMPLETE TITLE:         Julaine K. Appling, Jo Egelhoff, Jaren E.
                        Hiller, Richard
                        Kessenich and Edmund L. Webster,
                                   Plaintiffs-Appellants-Petitioners,
                             v.
                        Scott Walker, Kitty Rhoades and Oskar Anderson,
                                   Defendants-Respondents,
                        Fair Wisconsin, Inc., Glenn Carlson, Michael
                        Childers,
                        Crystal Hyslop, Janice Czyscon, Kathy Flores,
                        Ann
                        Kendzierski, David Kopitzke, Paul Klawiter, Chad
                        Wege and
                        Andrew Wege,
                                   Intervening Defendants-Respondents.



                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                           Reported at 345 Wis. 2d 762, 826 N.W.2d 666
                                   (Ct. App. 2013 – Published)
                                      PDC No.: 2013 WI App 3

OPINION FILED:          July 31, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          October 23, 2013

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Dane
   JUDGE:               Daniel R. Moeser

JUSTICES:
   CONCURRED:           ABRAHAMSON, C.J., concurs. (Opinion filed.)
                        ROGGENSACK, J., concurs. (Opinion filed.)
  DISSENTED:
  NOT PARTICIPATING:


ATTORNEYS:
       For        the   plaintiffs-appellants-petitioners,        there    were
briefs by Michael D. Dean and First Freedoms Foundation Inc.,
Brookfield;         Richard     Esenberg,   Mequon;    David   Austin     Robert
Nimocks,        James   A.    Campbell,   and   Alliance   Defending    Freedom,
Washington      D.C.,    and     oral     argument      by      David    Austin      Robert
Nimocks.


    For the intervening defendants-respondents, the cause was
argued   by    Christopher        R.    Clark     of   Lambda        Legal    Defense    and
Education Fund, Inc., Chicago; with whom on the brief was Brian
Butler, Barbara Neider, and Stafford Rosenbaum LLP, Madison.


    An     amicus      curiae     brief     was    filed        by   Dyann    L.    Hafner,
assistant corporation counsel, on behalf of Dane County.


    An     amicus      curiae     brief    was     filed     by      Donald    K.   Schott,
Joseph T. Hanes, and Quarles & Brady LLP, Madison; Sarah L.
Fowles   and       Quarles   &    Brady   LLP,     Milwaukee;          and    Laurence    J.
Dupuis and ACLU of Wisconsin Foundation, Inc., Milwaukee; and
John A. Knight and American Civil Liberties Union Foundation,
Chicago;      on    behalf   of    LGBT     Chamber        of     Commerce,     Katharine
Heyning,   Judith       Trampf,     Wendy    Woodruff,          Mary    Woodruff,     Jayne
Dunnum, Robin Timm, Virgina Wolf, and Carol Schumacher.




                                            2
                                                                                  2014 WI 96
                                                                           NOTICE
                                                          This opinion is subject to further
                                                          editing and modification.   The final
                                                          version will appear in the bound
                                                          volume of the official reports.
No. 2011AP1572
(L.C. No.   2010CV4434)

STATE OF WISCONSIN                                    :             IN SUPREME COURT

Julaine K. Appling, Jo Egelhoff, Jaren E.
Hiller, Richard Kessenich and Edmund L.
Webster,

            Plaintiffs-Appellants-Petitioners

      v.                                                                      FILED
Scott Walker, Kitty Rhoades and Oskar Anderson,
                                                                        JUL 31, 2014
            Defendants-Respondents,
                                                                           Diane M. Fremgen
                                                                        Clerk of Supreme Court
Fair Wisconsin, Inc., Glenn Carlson, Michael
Childers, Crystal Hyslop, Janice Czyscon, Kathy
Flores, Ann Kendzierski, David Kopitzke, Paul
Klawiter, Chad Wege and Andrew Wege,

            Intervening Defendants-Respondents.




      REVIEW of a decision of the Court of Appeals.                          Affirmed.

      ¶1    N. PATRICK CROOKS, J.               Wisconsin voters amended the

state   constitution        in    2006,      adding       two    sentences:          "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
                                                       No.     2011AP1572



state."1    In this case we are asked to determine whether Wis.

Stat. Chapter 770, by which the legislature created the legal

status of domestic partnership for same-sex couples,2 violates

that constitutional provision.3




     1
         Art. XIII, Sec. 13, Wisconsin Constitution.
     2
       Wis. Stat. § 770.01 defines domestic partner and domestic
partnership as follows:

     (1) “Domestic partner” means an individual who has
     signed and filed a declaration of domestic partnership
     in the office of the register of deeds of the county
     in which he or she resides.

     (2)    “Domestic    partnership” means the  legal
     relationship that is formed between 2 individuals
     under this chapter.

To form a domestic partnership, individuals     must be      members of
the same sex, must not be nearer of kin        to each       other than
second cousins, must be at least 18 years      old and       capable of
consent, must share a common residence, and    must not      be married
to or in a domestic partnership with another   person.       Wis. Stat.
§ 770.05.
     3
       This case contains no challenge to Art. XIII, Sec. 13
itself. As the court of appeals stated, "This case is not about
whether the Wisconsin or United States Constitutions require, on
equal protection or other grounds, that same-sex couples have
the right to a legally recognized relationship that is identical
or substantially similar to marriage. To the contrary, for the
domestic partnership law to pass muster here, the 'legal status'
created by that law may not be 'substantially similar' to the
'legal status' of marriage."   Appling v. Doyle, 2013 WI App 3,
¶5, 345 Wis. 2d 762, 826 N.W.2d 666.

                                  2
                                                                      No.   2011AP1572



     ¶2     The question is whether Plaintiffs4 have proved beyond

a   reasonable        doubt   that      the       same-sex   domestic   partnership

created by Chapter 770 violates Article XIII, Section 13 of the

Wisconsin Constitution.            Under our precedent, intent is critical

to determining what the Amendment means5 and consequently to

determining whether the statute, which is accorded a presumption

of constitutionality, withstands the Plaintiffs' challenge.

     ¶3     For the reasons stated herein, we affirm the court of

appeals' holding that Chapter 770 is constitutional based on the

presumption      of    constitutionality,           the   Plaintiffs'   failure    to

meet the burden of proof, and the evidence we have reviewed in

accord    with     the      Dairyland     decision,       which   establishes     the

framework     we      use     to   interpret         constitutional     provisions.

Dairyland Greyhound Park, Inc. v. Doyle, 2006 WI 107, 295 Wis.

2d 1, 719 N.W.2d 408.




     4
       Julaine Appling and other named plaintiffs (collectively,
Plaintiffs) were the president and members of the board of
directors, respectively, of Wisconsin Family Action, a not-for-
profit organization that advocated publicly for the approval of
the Marriage Amendment.      At the time of the ratification
process, Appling also held other positions with Family Research
Institute of Wisconsin, the Vote Yes for Marriage referendum
campaign, and the Wisconsin Coalition for Traditional Marriage.
     5
       State ex rel. Bare v. Schinz, 194 Wis. 397, 404, 216 N.W.
509 (1927) ("The constitution means what its framers and the
people approving of it have intended it to mean . . . . ")

                                              3
                                                                                   No.    2011AP1572



      ¶4        Intervening Defendants6 argue that the Amendment does

not       bar     domestic         partnerships               because        they        are     not

"substantially       similar"          to    marriage,         and     they   point       to    many

differences, including a long list of rights of married people

that are not conferred on domestic partners.                             It is Plaintiffs'

position that what makes the domestic partnership a legal status

substantially        similar        to       that        of    marriage        is        that    the

similarities        it        shares        with        marriage       are    actually          "the

constituent elements that make the legally recognized marital

relationship       what       it   is——the         component       parts      of    the    marital

relationship . . . ." Those elements identified by Plaintiffs in

their briefs as "constituent elements" of marriage are that it

is 1) between two persons 2) who are over a certain age, 3) who

are   competent          to     consent,           4)    who     are     in        an    exclusive

relationship, 5) who are of specified sexes, and 6) who are not


      6
       Fair Wisconsin, Inc., a non-profit organization that
advocates for the civil rights of lesbian, gay, bisexual and
transgendered   people,  and   ten   individuals  (collectively,
Intervening Defendants) were granted leave to intervene to
defend the constitutionality of the domestic partnership statute
after the Defendants (the governor, secretary of the Wisconsin
Department of Health Services, and the Wisconsin Registrar of
Vital Statistics) filed a motion to withdraw from the case on
the grounds that their position had changed with the new
administration and was now consistent with that of the
Plaintiffs.

     As the court of appeals noted, "The Attorney General has
declined to defend the domestic partnership law and . . . the
appointed counsel for the defendants likewise declined to defend
the law. Accordingly, the task of defending the law fell solely
to the intervening defendants-respondents . . . ." Appling v.
Doyle, 345 Wis. 2d 762, ¶3 n.2.

                                                   4
                                                    No.   2011AP1572



closely related.7   Plaintiffs focus on these characteristics——not

the rights, duties and benefits that are associated with each

status——as the "essential and material elements on which the

marriage relation rests"8 and the substantial similarity that


     7
         See Wis. Stat. §§ 765.02, 765.03 (requirements for
persons entering into marriage) and Wis. Stat. § 770.05
(requirements for persons entering into domestic partnerships).
     8
       Plaintiffs have not identified any authority for the
proposition that the elements they identify are the defining
constituent   elements  of   marriage  for   purposes  of  our
"substantially similar" analysis.   The apparent source of the
phrase "constituent elements" is a citation by Plaintiffs to a
similar phrase——"essential and material elements on which the
marriage relation rests"——that appears in Varney v. Varney, an
1881 case.

     There, a husband sought to void a marriage on the basis of
the alleged "fraudulent and false representations of the
respondent as to her previous character for chastity"; the court
rejected his claim, holding that "no misconception as to the
character, fortune, health, or temper, however brought about,
will support an allegation of fraud on which a dissolution of
the marriage contract, when once executed, can be obtained in a
court of justice. These are accidental qualities, which do not
constitute the essential and material elements on which the
marriage relation rests. The law, in the exercise of a wise and
sound policy, seeks to render the contract of marriage, when
once executed, as far as possible indissoluble."       Varney v.
Varney, 52 Wis. 120, 123, 8 N.W. 739 (1881) (emphasis added).

     Because it does not attempt to say what the essential and
material elements are, Varney does not support the proposition
that the six elements Plaintiffs identify in their brief are the
essential elements of marriage.    At oral argument, Plaintiffs
appeared to narrow their focus to two characteristics that made
a status "substantially similar" to marriage: the presence of
consanguinity prohibitions and gender specificity requirements.
There was likewise no legal authority cited for the proposition
that those two characteristics constitute the essence of
marriage and that any legal status where they are present is
substantially similar to marriage. See ¶54 infra.

                                 5
                                                                   No.        2011AP1572



renders   the     domestic     partnership   law    unconstitutional.               They

acknowledge      that   the    legislature    has   the    power     to       create    a

domestic partnership status and accord it as many rights as it

wishes.     They say that what the legislature cannot do is define

eligibility based on marriage-like intimate relationships, and

that it could avoid violating the Amendment by making such a

status    available     to    cohabiting    adults,   such    as    siblings,          to

remove the substantial similarity to marriage.

    ¶5      In short, they contend that it is the "existence of an

exclusive,       intimate     relationship——clearly       implicit       in    Chapter

770——that    creates    the     substantially   similar      status"          and   that

Chapter    770    created     "the   very   thing   that    the    Amendment        was

designed to prohibit."

    ¶6      It is well established that challengers to a statute

face a very difficult task.

    A statute enjoys a presumption of constitutionality.
    To overcome that presumption, a party challenging a
    statute's constitutionality bears a heavy burden. It
    is insufficient for the party challenging the statute
    to   merely   establish   either   that   the    statute's
    constitutionality is doubtful or that the statute is
    probably    unconstitutional.    Instead,     the    party
    challenging a statute's constitutionality must "prove
    that   the   statute   is   unconstitutional    beyond   a
    reasonable doubt."
State v. Smith, 2010 WI 16, ¶8, 323 Wis. 2d 377, 780 N.W.2d 90

(citations omitted).           "Furthermore, 'every presumption must be

indulged to sustain the law if at all possible and, wherever

doubt exists as to a legislative enactment's constitutionality,




                                        6
                                                                                 No.     2011AP1572



it must be resolved in favor of constitutionality.'"                                     Georgina

G. v. Terry M., 184 Wis. 2d 492, 515, 516 N.W.2d 678 (1994).

       ¶7        Such        a    framework       for     analysis         has     doomed       many

challenges, and it dooms this one as well.                                   Like the circuit

court and the court of appeals, we conclude that the Plaintiffs

have not met their burden of proving beyond a reasonable doubt

that       the   domestic          partnership      law    is    unconstitutional.               Our

conclusion is compelled by the presumption of constitutionality,

the Plaintiffs' failure to meet the burden of proof, and the

evidence we have reviewed in accord with the test set forth in

the    Dairyland         decision.9             "The    constitution          means      what    its

framers       and      the       people   approving       of    it    have    intended      it    to

mean . . . ."10              To determine what the framers and the voters

intended         a     constitutional           amendment       to    mean,      based    on     our

precedent we are to consider what is reflected in the plain

language         of     the        statute,      the      constitutional           debates       and

practices of the time as exemplified during the ratification

campaign that surrounded the voters' passage of the Amendment,
as    well       as,    to       the   extent    probative,          the   first    legislation

passed following the Amendment's passage.11

       9
       "[This   Court]   examine[s]  three  primary  sources  in
determining the      meaning of a constitutional provision: the
plain meaning, the constitutional debates and practices of the
time, and the earliest interpretations of the provision by the
legislature, as manifested through the first legislative action
following adoption."    Dairyland Greyhound Park, Inc. v. Doyle,
2006 WI 107, ¶19, 295 Wis. 2d 1, 719 N.W.2d 408.
       10
            Bare, 194 Wis. at 404.
       11
            Dairyland Greyhound Park, Inc., 295 Wis. 2d 1, ¶19.
                                                   7
                                                                       No.   2011AP1572



      ¶8     The plain language of the Amendment prohibits only a

status "identical or substantially similar to" marriage, and by

implication     it    does    not     prohibit     what    is    not   identical    or

substantially similar thereto.                   There are important statutory

distinctions in the way the state treats marriage and domestic

partnerships and important differences in the lists of benefits

and obligations that inhere in the two types of relationships.12

In light of the totality of those differences, Plaintiffs have

not overcome the presumption that Chapter 770 is constitutional.

      ¶9     Our     conclusion       is    supported     by    evidence     from   the

drafting and ratification process -- evidence in the drafting

files13 that the framers of the Amendment intended specifically

to allow legislation that provided a set of rights and benefits

to   same-sex      couples.     We    are   supported     in    our    conclusion    by

evidence      that     voters        were    repeatedly        told    by    Amendment


      12
           See infra, ¶¶31-32.
      13
       For example, the drafting files contain a memorandum from
Rep. Mark D. Gundrum seeking co-sponsors in the Assembly, which
says that the proposal "would 'prevent same-sex marriages from
being legalized in this state'"; it goes on to state that the
proposal "does not prohibit the state . . . from setting up
[its] own legal construct to provide particular privileges or
benefits, such as health insurance benefits, pension benefits,
joint tax return filing, hospital visitation, etc. as those
bodies are able and deem appropriate."

     The drafting file contains a press release from Rep. Scott
Suder, dated March 1, 2006, which states, "Despite what some gay
rights groups are claiming, Suder said the proposal does NOT
prohibit the state, local governments, or private businesses
from extending health insurance benefits and other privileges to
same sex couples."

                                             8
                                                                       No.    2011AP1572



proponents     that     the    Amendment       simply    would     not      preclude    a

mechanism for legislative grants of certain rights to same-sex

couples.14     We see no evidence that voters who approved the

Amendment saw it as permitting those rights to be granted only

in    the   kind   of   scheme    Plaintiffs       now    suggest——that         is,    in

cohabiting domestic relationships that bear no resemblance at

all    to   marriage,     with    same-sex      couples     only       as    incidental

beneficiaries.15        Of course the Amendment's opponents put out a

different message to voters, but as the court of appeals noted,

it makes sense to credit the notion, when the proponents prevail

in a referendum, that theirs was the message that resonated with

the    majority    of    voters.16         Finally,       our    conclusion      draws

additional     support,       although   limited,        from    the   legislature's

       14
       E.g., an August 2006 publication from the Family Research
Institute of Wisconsin, "Questions and Answers About Wisconsin's
Marriage Protection Law," stated, "The second sentence [of the
Amendment] doesn't even prevent the state legislature from
taking up a bill that gives a limited number of benefits to
people in sexual relationships outside of marriage, should the
legislature want to do so." (Emphasis added.)
       15
        That argument is untenable because leaving consideration
of the associated rights and benefits out of the analysis would
mean, as the court of appeals noted, that the legislature could
constitutionally create a set of eligibility requirements that
did not resemble marriage "and then confer on that status all
the rights and obligations of marriage." Appling, 345 Wis. 2d
762, ¶31. As the court of appeals points out, "[s]uch a
scenario, permissible under [Plaintiffs'] theory, is the very
definition of marriage by another name," and that is without
question what the Amendment prohibits. Id.
     16
        Appling, 345 Wis. 2d 762, ¶¶47-48 (“[T]he more reasonable
and obvious conclusion is that voters who ended up favoring the
amendment were, generally speaking, persuaded by statements of
the   proponents,    including  proponent   assurances   of   the
amendment's effect on domestic partnerships.”).
                                           9
                                                                     No.    2011AP1572



careful    adoption    of   the   first       legislative      act   following      the

Marriage Amendment, adoption of Chapter 770 itself.

                                   BACKGROUND

     ¶10    The   ratification      of    the      Marriage    Amendment     and    the

passage    of    the   domestic    partnership        law     occurred     against   a

backdrop    of    significant     social      and    legal     shifts    across     the

country    concerning       the   status      of    same-sex     couples.          What

happened in two states in particular is relevant because they

were frequently cited by Amendment proponents in the course of

the ratification process.          A 2003 Massachusetts Supreme Judicial

Court decision establishing the right of same-sex couples to

marry in Massachusetts is widely seen as the catalyst for the

subsequent developments.17         Following a similar court ruling by

the Vermont Supreme Court, Vermont's legislature passed a law

that created what became known as "Vermont-style civil unions,"

a legal status for same sex couples that paralleled that of




     17
       Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941 (Mass.
2003)     (establishing the right of same-sex couples to marry
in Massachusetts and giving the legislature six months to comply
with the ruling).

                                         10
                                                                        No.    2011AP1572



marriage       in   all     respects    as     to    state   law.18      Those    legal

developments        prompted      a   move    among    several     states      including

Wisconsin for constitutional amendments that were intended to

prevent similar judicial or legislative acts.19                       In the drafting

files, a legislative memo by Rep. Mark D. Gundrum, one of the

lead    sponsors       of   the     Amendment,       described   the    Amendment     as

necessary because "nothing in our state constitution presently

protects against our State Supreme Court from doing the same

thing the Massachusetts               Supreme Court did in 2003 (or [the]

Vermont Supreme Court did in 1999 or the Hawaii Supreme Court

did in 1993 . . .) and legislating from the bench to radically

alter       marriage   in    this     state    and    judicially      impose   same-sex

marriage on this state."


       18
       Baker v. Vermont, 744 A.2d 864, 886 (Vt. 1999) (holding
that the Vermont constitution entitled gay couples in Vermont to
"the same benefits and protections afforded by Vermont law to
married opposite-sex couples.").       The following year, the
Vermont legislature amended its statutes, creating what were
later   referred  to   in  Wisconsin    before  and  during  the
ratification process as "Vermont-style civil unions." Vt. Stat.
tit. 15, §§ 1201-1207 (2000); see also Appling, 345 Wis. 2d 762,
¶59. Vermont's law explicitly provided that "[p]arties    to   a
civil union shall have all the same benefits, protections, and
responsibilities under law . . . as are granted to spouses in a
civil marriage." Vt. Stat. tit. 15, § 1204 (2000).
       19
       See Amy Rinard & Steven Walters, "Court endorses gay
marriage[;] Senate Republicans vow to propose amendment banning
same-sex unions," Milwaukee Journal Sentinel, Nov. 19, 2003, at
1A (discussing the reaction in the Wisconsin Senate to the
Massachusetts ruling in Goodridge).    See also Tom Heinen, "59%
oppose gay unions, survey finds[;] Poll finds most notable rise
among religious Americans," Milwaukee Journal Sentinel, Nov. 19,
2003, at 18A   (discussing rising public opposition to same-sex
marriage in the wake of the Massachusetts ruling).

                                              11
                                                          No.   2011AP1572



    ¶11    In McConkey v. Van Hollen, we described the passage of

the Wisconsin Marriage Amendment as follows:

    During both the 2003 and 2005 sessions, the Wisconsin
    State Assembly and Senate adopted a joint resolution
    to amend the Wisconsin Constitution. Though the 2003
    and   2005   versions   contained   minor   procedural
    variations, the text of the resolution itself was
    identical. Both versions of the resolution contained
    what the parties have referred to as the title: "To
    create section 13 of article XIII of the constitution;
    relating to: providing that only a marriage between
    one man and one woman shall be valid or recognized as
    a marriage in this state." The substance of the
    resolution contained two sections. Section 1 stated
    the text of the proposed marriage amendment. Section 2
    of the resolution addressed the numbering of the new
    proposed amendment.

    Because the joint resolution was passed by two
    successive legislatures, the amendment was submitted
    to the people for ratification. Wisconsin voters were
    asked the following question:

    Marriage. Shall section 13 of article XIII of the
    constitution be created to provide that only a
    marriage between one man and one woman shall be valid
    or recognized as a marriage in this state and that a
    legal status identical or substantially similar to
    that of marriage for unmarried individuals shall not
    be valid or recognized in this state?

    On November 7, 2006, Wisconsin voters approved this
    amendment by a vote of 59 percent to 41 percent.
McConkey v. Van Hollen, 2010 WI 57, ¶¶ 7-8, 326 Wis. 2d 1, 783

N.W.2d 855, 858-59 (holding that there was no violation of the

"separate amendment rule," the constitution's requirement that

voters    must   be   allowed   to    vote   separately   on    separate

amendments).




                                     12
                                                           No.    2011AP1572



    ¶12    The   subsequent    passage   of   Chapter   770   established

domestic   partnerships       and   conferred    certain      rights    and

obligations:

    [I]n 2009, the Wisconsin legislature created a chapter
    in   the   Wisconsin   statutes  establishing   domestic
    partnerships as an option for same-sex couples.
    Wisconsin    Stat.   ch.    770  contains    eligibility
    requirements and prescribes the manner in which such
    partnerships are formed and terminated.      Chapter 770
    does not specify the rights and obligations of
    domestic partnerships.    The mechanism the legislature
    chose for conferring rights and obligations was to
    select a subset of rights and obligations found in
    other parts of the statutes that already apply to
    marriages and then indicate, in the text of those
    other    statutes,   that   they   apply   to   domestic
    partnerships.    For example, Wis. Stat. § 861.21(2),
    the statute assigning to a surviving spouse his or her
    decedent spouse’s interest in their home, was made
    applicable to domestic partnerships.

Appling v. Doyle, 2013 WI App 3, ¶7, 345 Wis. 2d 762, 826

N.W.2d 666.

                           PROCEDURAL HISTORY

    ¶13    In the circuit court, both Plaintiffs and Intervening

Defendants moved for summary judgment.           The circuit court for

Dane County, Judge Daniel R. Moeser presiding, granted summary

judgment to the Intervening Defendants.

    ¶14    The   circuit   court    considered     evidence      from   the

legislative drafting files and from the ratification campaign,

during which voters heard "messages . . .        similar to [those] in

the Marriage Amendment's drafting files."        It quoted extensively

from those materials, citing at least a dozen publications and

                                    13
                                                                  No.    2011AP1572


statements by Amendment proponents, which it said made clear

that the repeated message to voters was that the second sentence

of the Amendment was targeted at a "legally exact replica of

marriage, but without the title" and that the Amendment was not

intended to be "about benefits."                  It also compiled a list of

benefits conferred by Ch. 770 and then a non-exhaustive list of

more than 30 rights conferred by marriage that are not available

to domestic partners.            The circuit court rejected Plaintiffs'

arguments that the Amendment's ratification reflected voters'

intent "to further the general purpose of promoting a conjugal

model of marriage."20            Focusing on a comparison of the "legal

status" of each relationship, the circuit court concluded that

because "the state does not recognize domestic partnership in a

way   that   even    remotely      resembles       how   the   state    recognizes

marriage," and because domestic partners have "far fewer legal

rights, duties, and liabilities in comparison to . . . [those]

of spouses," the Plaintiffs had failed to carry their burden to

prove the statute unconstitutional.

      ¶15    The    court   of    appeals    likewise      addressed     what   the

Amendment     meant,    considering         the     Dairyland    sources,       with

reference to its plain language and the explanations given to


      20
       See Appling, 345 Wis. 2d 762, ¶62 ("Appling explains that
the 'conjugal model' is based on the premise that marriage is
for sexual procreation and is 'child-focused.'")

                                       14
                                                                   No.     2011AP1572


voters during the ratification process about its meaning.                          It

concluded that while the Plaintiffs had the burden to "show

unconstitutionality beyond a reasonable doubt by persuading us

that the voters who ratified the marriage amendment intended

that it would ban the particular type of same-sex partnerships

created by the domestic partnership law," they had fallen “far

short of meeting [that] burden.”             Appling, 345 Wis. 2d 762, ¶¶4,

15.

                             STANDARD OF REVIEW

       ¶16   This case comes to us on a summary judgment ruling,

and it requires us to interpret a constitutional provision and a

statute.     "We do not review the circuit court's grant or denial

of summary judgment under an erroneous exercise of discretion

standard.        Rather,         our   review       is   independent        of    the

determination rendered by the circuit court, but we apply the

same methodology." Tews v. NHI, LLC, 2010 WI 137, ¶40, 330 Wis.

2d 389, 793 N.W.2d 860 (citations omitted).                   We approach this in

the   same   manner    as   the    court     of    appeals,    which     noted   that

"[u]nder summary judgment methodology, '[i]f there is no dispute

as to the material facts or inferences, . . . summary judgment

is    appropriate     and   we    proceed     to    [resolve     the   dispute     by

considering] the legal issue or issues raised by the [summary

judgment] motion.' Here there is no dispute about the facts and,

accordingly, we focus on the parties' legal disputes and the

                                        15
                                                      No.   2011AP1572


application of law to the undisputed facts."     Appling, 345 Wis.

2d 762, ¶9 (citations omitted).

    ¶17   The interpretation of a constitutional provision is a

question of law that we review de novo.        Dairyland Greyhound

Park, Inc., 295 Wis. 2d 1, ¶16.        "The constitutionality of a

statute is a question of law which we review          de novo.     In

reviewing the constitutionality of a statute, 'there is a strong

presumption that a legislative enactment is constitutional.'"

Georgina G., 184 Wis. 2d at 515. "The party challenging the

constitutionality of a statute 'must prove beyond a reasonable

doubt that the act is unconstitutional.'"21     Id.   "Furthermore,

    21
       Although our decision today addresses a facial challenge
to the constitutionality of Chapter 770, we note that this
court's review of facial challenges and as applied challenges is
not identical.    The burden of proof that challengers face,
beyond a reasonable doubt, is the same in both facial and as
applied constitutional challenges.    See Soc'y Ins. v. Labor &
Indus. Review Comm'n, 2010 WI 68, ¶27 , 326 Wis. 2d 444, 786
N.W.2d 385; Georgina G. v. Terry M., 184 Wis. 2d 492, 515, 516
N.W.2d    678   (1994).       However,    the   presumption   of
constitutionality enjoyed by statutes, which is central to our
analysis in addressing a facial challenge, is not applicable to
our review of an as applied challenge. See Soc'y Ins., 326 Wis.
2d 444, ¶27.

     In addressing the presumption of constitutionality afforded
to statutes in the context of as applied constitutional
challenges, we previously explained, "[w]hile we presume a
statute is constitutional, we do not presume that the State
applies statutes in a constitutional manner. Because the
legislature plays no part in enforcing our statutes, 'deference
to legislative acts' is not achieved by presuming that the
statute has been constitutionally applied. As such, neither the
challenger nor the enforcer of the statute face a presumption in
an as-applied challenge."   Id. (internal citations omitted).

                                  16
                                                                 No.   2011AP1572


'every presumption must be indulged to sustain the law if at all

possible     and,      wherever   doubt     exists    as   to   a   legislative

enactment's constitutionality, it must be resolved in favor of

constitutionality.'"         Id. (citations omitted).

                                   ANALYSIS

     ¶18     Against that daunting standard, Plaintiffs have set

themselves the task of proving beyond a reasonable doubt that

Ch. 770, the domestic partnership law, is unconstitutional.                    We

therefore examine whether they have proved beyond a reasonable

doubt     that   Ch.   770   created   a    legal    status   identical   to   or

substantially similar to that of marriage——the kind of legal

status that the framers of the Marriage Amendment and the voters

who adopted it intended to prohibit.            We begin our discussion by

identifying and applying the test that governs the analysis of

the meaning of a constitutional provision; we then consider what

legal status is given to Chapter 770 domestic partnerships and

whether that legal status is one that the Amendment was meant to

prohibit.22

     22
       As the court of appeals noted, "This case is not about
whether the Wisconsin or United States Constitutions require, on
equal protection or other grounds, that same-sex couples have
the right to a legally recognized relationship that is identical
or substantially similar to marriage. To the contrary, for the
domestic partnership law to pass muster here, the 'legal status'
created by that law may not be 'substantially similar' to the
'legal status' of marriage." Appling, 345 Wis. 2d 762, ¶5.    In
other words, this case does not involve an attack on the
constitutional amendment, Article XIII, Section 13, itself.

                                       17
                                                                No.   2011AP1572


    I. WHAT TEST DO WE EMPLOY TO DETERMINE THE MEANING OF A
                   CONSTITUTIONAL PROVISION?
    ¶19   The purpose of construing a constitutional amendment

"is to give effect to the intent of the framers and of the

voters who adopted it."        State v. Cole, 2003 WI 112, ¶10, 264

Wis. 2d 520, 665 N.W.2d 328 (citations omitted).                Constitutions

should be construed "so as to promote the objects for which they

were framed and adopted."           Id.       "We therefore examine three

primary sources in determining the meaning of a constitutional

provision:    the   plain   meaning,    the    constitutional    debates    and

practices of the time, and the earliest interpretations of the

provision by the legislature, as manifested through the first

legislative    action   following      adoption."     Dairyland       Greyhound

Park, Inc., 295 Wis. 2d 1, ¶19 (citations omitted).

    ¶20   Interpreting a constitutional amendment differs from

interpreting a statute; we undertake a "more intense review" of

extrinsic evidence when interpreting a constitutional provision:

    Our methodology in interpreting a constitutional
    provision envisions more intense review of extrinsic
    sources    than   our   methodology   in   statutory
    interpretation. . . .

    The reasons we employ a different methodology for
    constitutional     interpretation     are     evident.
    Constitutional provisions do not become law until they
    are approved by the people. Voters do not have the
    same access to the “words” of a provision as the
    legislators who framed those words; and most voters
    are not familiar with the debates in the legislature.
    As a result, voters necessarily consider second-hand
    explanations   and   discussion   at   the   time   of
    ratification. In addition, the meaning of words may
    evolve over time, obscuring the original meaning or
    purpose of a provision. The original meaning of a
    provision might be lost if courts could not resort to

                                       18
                                                                         No.    2011AP1572


       extrinsic    sources.    Finally,     interpreting a
       constitutional provision is likely to have a more
       lasting effect than the interpretation of a statute,
       inasmuch as statutory language can be more easily
       changed than constitutional language. Thus, it is
       vital for court decisions to capture accurately the
       essence of a constitutional provision.
Dairyland      Greyhound          Park,   Inc.,     295    Wis.    2d    1,    ¶¶115-116

(Prosser, J., concurring in part and dissenting in part).

       ¶21    Of    the    three     sources      identified      in    Dairyland,    the

first two prongs are the most useful under the circumstances

presented here: the plain meaning of the amendment, and the

constitutional debates and practices of the time.                          We apply the

third source——"the earliest interpretations of the provision by

the    legislature,        as     manifested     through   the     first      legislative

action following adoption"——in a limited sense in a case such as

this, where the challenge is to the constitutionality of "the

first legislative action following adoption" itself.                           Dairyland

Greyhound Park, Inc., 295 Wis. 2d 1, ¶49.                         In other words, in

this    case       it     would     be    potentially      problematic         to   place

significant weight on the legislature's enactment of Chapter 770

when interpreting the Marriage Amendment because the Plaintiffs'

claim    is    that       that    first    legislative      action      following     the




                                            19
                                                                         No.   2011AP1572



Marriage Amendment, Chapter 770, violated the constitution.23                          In

this    context,      a    meaningful       analysis     is    accomplished    with    an

emphasis       on    the    plain     meaning       of   the     Amendment     and    the

constitutional debates and practices of the times as exemplified

during      the     ratification     process       and   limited    reliance    on    the

legislature's adoption of Chapter 770 itself.

              A. WHAT IS THE PLAIN MEANING OF THE AMENDMENT?

       ¶22     To determine what the framers and the voters wanted

the constitutional provision to accomplish we first look at the

plain language and meaning of the amendment they ratified.

       ¶23     What is prohibited by the Marriage Amendment is "a

legal       status    identical     or   substantially         similar    to   that    of

marriage."          Like    the     court     of     appeals,      we    "agree      with

[Plaintiffs] that, to properly assess the plain meaning of the

term 'legal status,' that term must be viewed in context.                             The

issue here is not the generic meaning of 'legal status,' but

rather . . . its meaning as used in the constitutional phrase

       23
       Appling argued that the shift in the political makeup of
the Wisconsin legislature between the ratification of the
Amendment and the enactment of Chapter 770 means that "the
Legislature that approved Chapter 770 . . . was not a reliable
interpreter of the Marriage Amendment."    The court of appeals
recognized this issue regarding the third source of Dairyland
evidence about the meaning of a constitutional provision; it
chose not to resolve the issue, partly on the grounds that
"ignor[ing] the legislature's 'earliest interpretation' of the
marriage amendment, namely the domestic partnership law" did not
affect its ultimate conclusion. Appling, 345 Wis. 2d 762, ¶72.
It noted that a finding that the legislature acted in defiance
of the constitutional amendment, as Plaintiffs essentially
suggested, "may conflict with the deference we are required to
accord the legislature." Id., ¶71.

                                             20
                                                             No.   2011AP1572



'[a] legal status identical or substantially similar to that of

marriage.'" Appling, 345 Wis. 2d 762, ¶24. This is consistent

with a "paramount rule of constitutional construction . . . that

the intent of the provision 'is to be ascertained, not alone by

considering the words of any part of the instrument, but by

ascertaining the general purpose of the whole[.]' [W]hen the

intent of the whole is ascertained, no part is to be construed

so that the general purpose [is] thwarted . . . ."                 Dairyland

Greyhound Park, Inc., 295 Wis. 2d 1, ¶24 (citations omitted).

Another relevant principle here is that "language is read where

possible to give reasonable effect to every word, in order to

avoid surplusage."     C. Coakley Relocation Sys., Inc. v. City of

Milwaukee, 2008 WI 68, ¶17, 310 Wis. 2d 456, 750 N.W.2d 900.

    ¶24   Turning to the words, then, "legal status" means "the

legal position of the individual in or with regard to the rest

of the community."    State v. Duket, 90 Wis. 272, 275, 63 N.W. 83

(1895).   Status is "the sum total of a person's legal rights,

duties,   liabilities,    and    other   legal     relations,        or   any
particular group of them separately considered."               Black's Law

Dictionary 1419 (7th ed. 1999).          A legal right is "a right

created or recognized by law."      Id. at 1323.    Rights, duties and

obligations   are   important   considerations,    but   a   legal    status

can't be fully examined without considering its eligibility and

formation requirements or constituent elements, because a legal

status cannot be fully understood without understanding who can

have it and what is necessary to obtain it.


                                   21
                                                                                 No.    2011AP1572



       ¶25    To avoid surplusage, our analysis must also take into

account      and      give        meaning       to        the   choice          of     the    word

"substantially"        as     a       modifier       of    "similar."           For    the    same

reason, we take it that the use of "substantially similar" means

that   a     status    that       is     merely      similar         is   not    meant       to    be

prohibited.         (There        is    no    contention        by    any   party      that       the

status of domestic partners is identical to that of marriage.)

       ¶26    The plain language of the Amendment indicates that the

framers and the voters intended to prohibit a status that gives

a   domestic       partner        a     sum    total       of   legal       rights,      duties,

liabilities, and other legal relations that is more than just

similar to the sum total of a married person's legal rights,

duties, liabilities, and other legal relations.

           B. WHAT INFORMATION WAS GIVEN TO VOTERS DURING THE
            CONSTITUTIONAL DEBATES AND RATIFICATION PROCESS?
       ¶27    The second source of information the Dairyland test

directs us to consider is the content of the                                    constitutional

debates and        practices of the time as exemplified during the
ratification process.                 The ballot question that was presented to

voters stated a question and provided the text of the proposed

amendment:

       Ballot Question: "Marriage.      Shall Section 13 of
       article XIII of the constitution be created to provide
       that only a marriage between one man and one woman
       shall be valid or recognized as a marriage in this
       state   and   that   a  legal   status  identical   or
       substantially   similar  to   that   of  marriage  for
       unmarried individuals shall not be valid or recognized
       in this state?"



                                                22
                                                                 No.   2011AP1572


     Text of Section: [Article XIII] Section 13. 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.

Wisconsin Blue Book 887 (2007-2008).
     ¶28     "This court presumes that, when informed, the citizens

of Wisconsin are familiar with the elements of the constitution

and with the laws, and that the information used to educate the

voters during the ratification campaign provides evidence of the

voters' intent."        Dairyland Greyhound Park, Inc., 295 Wis. 2d 1,

¶37 (determining voter intent by examining public statements,

news accounts, polls, news articles, and letters to the editor).

     ¶29     We therefore examine the relevant public statements

made by the Amendment's framers and other proponents that were

intended     to   persuade    voters   during     the   ratification    process.

During the process, the question of the effect on the rights of

same-sex couples was a matter of intense debate.                   A newspaper

article dated July 30, 2006, stated, "Although there's not much

dispute that the proposed constitutional amendment on marriage

in   Wisconsin      would     bar   same-sex      unions,    there     is   deep

disagreement about what the wording might mean for civil unions

and domestic-partner benefits." Stacy Forster, "Same-sex ban,

different interpretations," Milwaukee Journal Sentinel, July 30,

2006,   at   1B.   In   one   letter   to   the    editor   of   the   Milwaukee

Journal Sentinel, taking issue with an opponent's statements,

Rep. Mark D. Gundrum characterized opponents as "continu[ing]
the effort . . . to deceive people about the impact the man-


                                       23
                                                                           No.     2011AP1572



woman marriage constitutional amendment will have in Wisconsin"

and    flatly     rejected       the      notion       that    it    would       "seriously

jeopardize any legal protections for unmarried couples——gay or

straight."         Rep.      Mark        D.    Gundrum,       "Opponents         Resort   to

Deception, Fear," Milwaukee Journal Sentinel, August 6, 2006, at

2J. (Emphasis added.)             Proponents made numerous statements on

that issue as the following facts demonstrate.

       ¶30   A January 28, 2004, press release on the letterhead of

the    Wisconsin         Legislature           by      legislative         sponsors       who

spearheaded       the   effort      to    pass       the   Amendment,      Rep.    Mark    D.

Gundrum and Sen. Scott Fitzgerald, stated:

       The proposed amendment, while preserving marriage as
       one man-one woman unions, would also preclude the
       creation of unions which are substantially similar to
       marriage. 'Creating a technical "marriage," but just
       using a different name, to massage public opinion
       doesn't cut it,' Gundrum said. . . .     Significantly
       though, the language does not prohibit the legislature
       [and other entities] . . . from extending particular
       benefits to same-sex partners as those legal entities
       might choose to do.

(Emphasis supplied for the words "same-sex partners.")
       ¶31   In December 2005, Sen. Scott Fitzgerald was quoted as

follows in media accounts of legislative debates when the Senate

was    preparing        to   vote:        "The       second    [sentence]         sets    the

parameters for civil unions.                  Could a legislator put together a

pack   of    50   specific    things          they    would   like    to    give    to    gay

couples? Yeah, they could." (Emphasis added.)

       ¶32   A November 2006 statement issued by the office of Sen.
Scott Fitzgerald struck back at opponents of the Amendment and


                                              24
                                                                   No.     2011AP1572



said they were "intentionally mislead[ing] the public about the

amendment." Contrary to those "misleading" representations, the

statement said,

       Nothing in the proposed constitutional amendment would
       affect the ability of same-sex individuals from
       visiting a sick partner in the hospital or mak[ing]
       medical decisions for their partners as [prescribed]
       by a medical power of attorney. The non-partisan
       Legislative Council has written that the proposed
       amendment does not ban civil unions, only a Vermont-
       style system that is simply marriage by another name.
       If the amendment is approved by the voters . . . the
       legislature will still be free to pass legislation
       creating civil unions if it so desires.

(Emphasis added.)

       ¶33    An    article    written   by    Sen.      Scott   Fitzgerald      and

published in the Wisconsin State Journal stated, "Contrary to

claims from . . . liberal activists, the proposed constitutional

amendment would not prohibit state or local governments . . .

from   setting      up   a   legal   construct    to   provide    privileges      or

benefits such as health insurance benefits, pension benefits,

joint tax return filing or hospital visitation to same-sex or

unmarried couples."          (Emphasis added.)

       ¶34    The Family Research Institute of Wisconsin, a group

that advocated for the Amendment (it defined itself as seeking

to     preserve       "traditional       one-man/one-woman         marriage       in

Wisconsin"), issued a six-page publication dated August 2006,

listing      13    questions   and   answers     about    the    meaning    of   the

Amendment.         In that publication, the organization stated, "The

                                         25
                                                                     No.   2011AP1572


second    sentence    [of    the    Amendment]    doesn't     even    prevent      the

state legislature from taking up a bill that gives a limited

number of benefits to people in sexual relationships outside of

marriage, should the legislature want to do so."                           (Emphasis

added.)

    ¶35     An    article     authored    by     Julaine      Appling,     a     named

plaintiff    in     this    case,    published     Dec.    13,     2005,       stated,

"Contrary to the message being consistently given by opponents

of the amendment, the second phrase does not 'ban civil unions.'

. . . Nor does this phrase threaten benefits already given to

people in domestic partnership registries by companies or local

units of government."

    ¶36     In an Associated Press article dated Dec. 7, 2005,

Julaine Appling was quoted as saying, "Nothing in the second

sentence     prohibits       [legislative         grants      of     adoption       or

inheritance rights].          Nor does it in any way affect existing

benefits    given    by    local    governments    or   the    private      sector."

J.R. Ross, "Senate approves amendment to ban gay marriage, civil

unions,"    Associated Press, Dec. 7, 2005.

    ¶37     This representative sampling of messages, publicized

by some of the most prominent and prolific advocates of the

Amendment, makes clear that in response to concerns about what

exactly the Amendment would prohibit, such advocates answered

directly that the Amendment would not preclude a legislative

                                         26
                                                                             No.     2011AP1572


decision to create a legal mechanism giving unmarried couples in

intimate      relationships     specific          sets    of    rights       and    benefits.

The message was also clearly given that the Amendment would not

diminish       rights   in    existing      domestic           partnerships.         Same-sex

partners were specifically included in such answers.

           C. WHAT LIGHT DOES THE LEGISLATURE'S ADOPTION OF
      CHAPTER 770 SHED ON THE MEANING OF THE MARRIAGE AMENDMENT?

       ¶38     The third source of information used to determine the

meaning       of    a   constitutional            amendment          is     "the     earliest

interpretations         of    the     provision          by     the       legislature,      as

manifested         through    the     first       legislative          action       following

adoption."         Dairyland Greyhound Park, Inc., 295 Wis. 2d 1, ¶19.

Review of legislation following a constitutional amendment has

proved       particularly     useful,       for    example,          in     discerning      the

meaning of specific terms in a constitutional amendment.                                 Payne

v.    City    of   Racine,    217    Wis.     550,   259       N.W.       437,     440   (1935)

(discussing        subsequent       legislation      to       define      the     meaning   of

"public      utility"    in   article       XI,    section       3     of    the    Wisconsin

Constitution); State v. Beno, 116 Wis. 2d 122, 138, 341 N.W.2d

668    (1984)       (adopting       the   court      of        appeals'          reliance   on

legislative acts to understand the meaning of "civil process" as

used in article IV, section 15 of the Wisconsin Constitution).

       ¶39     Analysis of the first legislation passed following the

passage of an amendment, however, provides a limited benefit in


                                            27
                                                                          No.    2011AP1572


this case where we are tasked with resolving a challenge to the

first law passed following the Marriage Amendment.                             We do find,

however, that the legislature's careful drafting of Chapter 770

and    its   legislative       declaration        of   policy       in    Wis.    Stat.    §

770.001 provide us with additional, yet limited, support for the

proposition that the Amendment was not intended to prohibit the

kind of domestic partnership created by Chapter 770.

       ¶40   During the drafting process, proponents of Chapter 770

carefully considered whether Chapter 770 would conflict with the

Marriage Amendment.             In doing so, proponents of Chapter 770

sought    and    received      legal       opinions    and     analysis        considering

possible     conflicts         between      Chapter      770     and      the     Marriage

Amendment.        For example, members of the legislature and the

governor        considered       legal       opinions        from        the     Wisconsin

Legislative Council's Chief of Legal Services, Don Dyke, and

University      of   Wisconsin       Law    School     Professor       David     Schwartz,

both of whom concluded that Chapter 770 did not violate the

Marriage     Amendment.         After      careful     consideration           during   the

drafting process, the legislature then chose to begin Chapter

770 with a declaration of policy.                    This declaration of policy,

in part, states, "the legal status of domestic partnership as

established in this chapter is not substantially similar to that

of    marriage.      Nothing    in   this     chapter     shall      be    construed      as

inconsistent with or a violation of article XIII, section 13, of

                                             28
                                                                           No.     2011AP1572


the Wisconsin Constitution."                  In considering the third source

from Dairyland, the legislature's careful consideration of the

intersection of Chapter 770 and the Amendment along with its

subsequent     declaration          of    policy    provide    additional,         but    not

dispositive, support for our conclusion today.

    II.      WHAT KIND OF LEGAL STATUS DOES CHAPTER 770 CREATE?

    ¶41      Having      set    out        the     relevant        evidence      from     the

Dairyland factors, we now look at what kind of legal status Wis.

Stat. Ch. 770 created.

    ¶42      We therefore look at what legal position a person in a

domestic     partnership       is    in    "with    regard     to    the    rest    of    the

community," Duket, 90 Wis. at 275, what rights and benefits

there are that the law recognizes such status as having, who can

have that legal status, and what is necessary to obtain it.

This part of the discussion is fairly straightforward:                                    the

definitions of legal status                 at issue are standard ones well

known   to   the   law    and       involve      little     more    than    a    review    of

undisputed     and    uncontroversial              facts      about     the      statutory

provisions concerning domestic partnerships and the statutory

provisions concerning marriage.

    ¶43      Wisconsin          Stat.            § 770.01      defines           "domestic

partnership" as "the legal relationship that is formed between 2

individuals under this chapter."                    The declaration of policy at

the beginning of Chapter 770 states simply, "The legislature

                                             29
                                                                  No.   2011AP1572


finds that it is in the interests of the citizens of this state

to establish and provide the parameters for a legal status of

domestic partnership.          The legislature further finds that the

legal     status    of   domestic   partnership     as    established    in   this

chapter     is     not   substantially    similar    to    that   of    marriage.

Nothing in this chapter shall be construed as inconsistent with

or a violation of article XIII, section 13, of the Wisconsin

Constitution."24         Wis. Stat. § 770.001.      It does not identify the

legal status as a contractual relationship.25               It does not impose

a mutual and equal obligation upon the partners.26

     ¶44     Chapter 770 does not impose the same obligations on

domestic partners as Wisconsin law imposes on married couples
     24
       Compare Wis. Stat. § 765.001, discussing the legislative
intent of marriage laws, which states in part, "Marriage is the
institution that is the foundation of the family and of society.
Its stability is basic to morality and civilization, and of
vital interest to society and the state."
     25
       Compare Wis. Stat. § 765.001, the legislative policy
statement regarding marriage laws, which states in part: "The
consequences of the marriage contract are more significant to
society than those of other contracts, and the public interest
must be taken into account always. . . . The impairment or
dissolution of the marriage relation generally results in injury
to the public wholly apart from the effect upon the parties
immediately concerned.
     26
       Compare Wis. Stat. § 765.001, which states in part,
"Under the laws of this state, marriage is a legal relationship
between 2 equal persons, a husband and wife, who owe to each
other mutual responsibility and support. Each spouse has an
equal obligation in accordance with his or her ability to
contribute money or services or both which are necessary for the
adequate support and maintenance of his or her minor children
and of the other spouse." (Emphasis added.)

                                         30
                                                               No.   2011AP1572


under Wis. Stat. ch. 765 and elsewhere.              Marriage is unique in

that it is an enforceable contract to which the state is a

party. See Fricke v. Fricke, 257 Wis. 124, 126, 42 N.W.2d 500,

501 (1950) ("There are three parties to a marriage contract—the

husband, the wife, and the state.").           Marriage carries with it

an "equal obligation" that spouses "owe to each other mutual

responsibility and support."          Wis. Stat. § 765.001(2). Once a

couple is married, "the law steps in and holds the parties to

various obligations and liabilities."          Maynard v. Hill, 125 U.S.

190, 211 (1888).


       ¶45    Chapter   770   makes   no   similar    demand    on   domestic

partners. Chapter 770 does not refer to a domestic partnership

as a contract; it does not obligate domestic partners to satisfy

a duty of "mutual responsibility and support."             While           the

Plaintiffs argue that this obligation can be read into ch. 770

from    the    co-habitation    requirement,    this     argument     is   not

persuasive given the specificity with which the legislature has

chosen to articulate spousal obligations under Wis. Stat. Ch.

765 and elsewhere.

       ¶46    As we noted previously, Wis. Stat. § 770.05 sets forth

the criteria for establishing a domestic partnership as follows:

       (1) Each individual is at least 18 years old                  and
       capable of consenting to the domestic partnership.

       (2) Neither individual is married to, or in a domestic
       partnership with, another individual.



                                      31
                                                         No.   2011AP1572


     (3) The     2   individuals   share   a   common   residence.
      . . .

     (4) The 2 individuals are not nearer of kin to each
     other than 2nd cousins, whether of the whole or half
     blood or by adoption.

     (5) The individuals are members of the same sex.
     ¶47    Terminating a domestic partnership does not require

state approval, nor does it require the approval or consent of

the second partner, and it can be dissolved automatically if

either partner marries.27

     ¶48 The rights conferred are not listed in Chapter
     770; rather, other statutes have been amended to add
     domestic partners to those whose rights are protected
     in various ways in specific contexts. As the court of
     appeals noted in its decision, The mechanism the
     legislature   chose   for    conferring  rights   and

     27
          Wis. Stat. § 770.12 states:

      (1)(a) A domestic partner may terminate the domestic
partnership by filing a completed notice of termination of
domestic partnership form with the county clerk who issued the
declaration of domestic partnership and paying the fee under s.
770.17. The notice must be signed by one or both domestic
partners and notarized.

      . . .

     (4)(a) Except as provided in par. (b), the termination of a
domestic partnership is effective 90 days after the certificate
of termination of domestic partnership is recorded under sub.
(3).

     (b) If a party to a domestic partnership enters into a
marriage that is recognized as valid in this state, the domestic
partnership is automatically terminated on the date of the
marriage.




                                   32
                                                                      No.     2011AP1572


      obligations was to select a subset of rights and
      obligations found in other parts of the statutes that
      already apply to marriages and then indicate, in the
      text of those other statutes, that they apply to
      domestic partnerships.      For example, Wis. Stat.
      § 861.21(2), the statute assigning to a surviving
      spouse his or her decedent spouse's interest in their
      home, was made applicable to domestic partnerships.

Appling, 345 Wis. 2d 762, ¶7.                Statutes that were amended

include     those    governing      victim       notification   (e.g.,      Wis.

Stat.    § 301.38(1)(a)),         administration       and    transfer      of    a

deceased individual's estate (Wis. Stat §§ 852.09, 861.33),

health    care    records    (Wis.     Stat.      § 146.81.(5)),      power      of

attorney for health care (Wis. Stat. §                 155.05), and family

and   medical     leave     (Wis.    Stat.       § 103.10).     The    circuit

court's     decision      noted     that    domestic    partners      are     not

included     in   other     statutes       granting    specific    rights        to

spouses; it listed a sampling of statutes granting rights,

both large and small, accorded to spouses only.                       Domestic

partners, for example, do not have the marital property

rights spelled out in Wis. Stat. Chapter 766.                      They also

are not permitted to obtain joint fishing licenses (Wis.

Stat. 29.219(4)).

      ¶49    Other     jurisdictions         treat     Wisconsin       citizens       in

Chapter 770 domestic partnerships differently than they treat

Wisconsin citizens in marriages.                 The court of appeals observed

that "[a]lthough Wisconsin recognizes marriages formed in other


                                            33
                                                                             No.   2011AP1572


jurisdictions, and Wisconsin marriages are likewise recognized

in other jurisdictions, the same cannot be said of domestic

partnerships.         .    .   .    When        it    comes   to     cross-jurisdictional

recognition,          marriages          and     domestic        partnerships      bear    no

resemblance."         345 Wis. 2d 762, ¶37.

    ¶50        That       is   underscored            by   the     fact     that   domestic

partnerships are not treated as equivalent to marriage, even

where     the     federal          government          recognizes      marriage     without

limiting it by gender.                  For example, some federal agencies now

extend federal benefits to spouses in same-sex marriages as well

as opposite-sex marriages (following the United States Supreme

Court's ruling in United States v. Windsor, 133 S. Ct. 2675

(2013), which struck down one provision of the federal Defense

of Marriage Act, 1 U.S.C. § 7).                        The Internal Revenue Service

now recognizes marriages regardless of the gender of the spouses

for tax filing purposes. See Rev. Rul. 2013-17, 2013-38 I.R.B.

201. (“For Federal tax purposes, the Service adopts a general

rule recognizing a marriage of same-sex individuals that was

validly    entered         into     in      a    state     whose     laws   authorize     the

marriage of two individuals of the same sex even if the married

couple    is    domiciled          in   a   state      that   does    not   recognize     the

validity of same-sex marriages.”). But it does not recognize for

tax-related purposes state-recognized domestic partnerships or

their equivalents. See id. ("For Federal tax purposes, the term

                                                 34
                                                                           No.      2011AP1572


'marriage' does not include registered domestic partnerships,

civil unions, or other similar formal relationships recognized

under state law that are not denominated as a marriage under

that state's law, and the terms 'spouse,' 'husband and wife,'

'husband,'      and     'wife'     do       not       include    individuals        who    have

entered into such a formal relationship.").


     III. IS THIS THE KIND OF LEGAL STATUS THE MARRIAGE AMENDMENT
                        WAS MEANT TO PROHIBIT?
       ¶51    Having set out the parameters of the legal status of

domestic partnerships, we now arrive at the crux of the matter:

have    the    Plaintiffs      carried        their        burden    to   show      beyond    a

reasonable      doubt     that     the      domestic        partnership       law    violates

Article XIII, Section 13 of the Wisconsin Constitution?

       ¶52    Keeping     as     our     reference         point    the   intent      of    the

framers and the voters, we turn to that specific question.                                   As

we have noted, the plain language of the Amendment prohibits a

legal   status        "identical       or   substantially           similar    to    that    of

marriage."      The public statements by proponents of the Amendment

in   the     public    debates     leading            up   to   ratification     repeatedly

emphasized the message that it would not prohibit anything other

than something that was "marriage by another name."                                 Thus, the

plain meaning of "substantially similar" was defined for voters

as something much more than similarities created by same-sex

couples' obtaining a specified amount of rights.                              For example,

as we noted previously, in a press release dated Nov. 2, 2006,
Sen.    Scott    Fitzgerald        issued         a    statement     quoting     "the      non-


                                              35
                                                                                No.    2011AP1572



partisan      Legislative          Council"      as    writing      that        "the    proposed

amendment does not ban civil unions, only a Vermont-style system

that    is    simply       marriage      by    another    name."      (Emphasis          added.)

Without       the        further       qualifications         now     advanced          by   the

Plaintiffs,         he    gave    to    the    voters    he   hoped       to     persuade    the

simple message that "only" the all-rights-included Vermont-style

scheme would be prohibited.

       ¶53     Plaintiffs now argue that what makes the Vermont-style

civil unions similar to the status in Chapter 770 is the nature

of the relationships, not the rights conferred on them, and they

argue       that    it    is     the    intimate       nature    of       the    relationship

"implicit in Ch. 770" that offends the constitutional provision

by mirroring marriage.28                 They aver that when they told voters

that the Amendment would not stop the legislature from creating

a mechanism to grant rights to non-married same-sex couples,

what they meant was a kind of domestic partnership that would

include      "two    brothers          who    live    together      and    share       household

expenses, or a young woman who lives with and helps care for her




       28
       At oral argument before this court, Plaintiffs asserted
that their argument had not changed, that this interpretation
had been the same all through the ratification process, and that
when proponents asserted that Vermont-style civil unions would
not be permitted by the Amendment, voters would have understood
that Chapter 770-style domestic partnerships would not either
because both impermissibly mirror marriage as intimate domestic
relationships.

                                                36
                                                                        No.   2011AP1572



widowed grandfather."29              However, the statements quoted herein

make     it      clear   that      during     the     constitutional     ratification

process,         proponents     explicitly          mentioned     same-sex     intimate

relationships when voters raised questions about what kind of

relationship might legally be recognized if it passed. We have

found       no   evidence     in     the    record     that    proponents     made   the

arguments to voters that they now say voters endorsed regarding

Vermont-style        unions,       constituent        elements    of   marriage,     and

consanguinity        prohibitions          and      sex-specificity     requirements.

Adopting Plaintiffs' position would require us to believe that

when voters heard the Marriage Amendment proponents, including

its     legislative      sponsors,         make     public     statements     that   the

legislature could choose to bundle certain rights and give them

to    same-sex      couples     in    civil      unions,      voters   understood    the

unspoken remainder of that sentence to be "as long as those

rights are not solely extended to same-sex couples but also

extended to other pairs of people in domestic settings without




       29
        It would theoretically be possible to sever portions of
the statute if that portion rendered it unconstitutional. See,
e.g., State v. Hezzie R., 220 Wis. 2d 360, 580 N.W.2d 660
(1998).   We note, however, that the statute itself contains no
severability clause, and though there was a suggestion at oral
argument that severing certain requirements in Chapter 770 might
eliminate    what  Plaintiffs   considered   its   impermissible
substantial similarities to marriage, the argument is not
sufficiently developed to make that a reasonable approach to be
considered in this case.

                                              37
                                                              No.   2011AP1572



regard to kinship or gender, such as siblings, grandparents and

grandchildren, and opposite-sex couples."30

      ¶54    Plaintiffs'   position   cannot   be   squared    at   all   with

proponents' pre-ratification statements about non-marital sexual

relationships and civil unions.            To follow Plaintiffs' logic,

dropping the "specified gender" requirement would make Chapter

770 less similar to the constituent elements of marriage, but

obviously dropping the requirement of a particular gender from

Ch.   770   would   make   the   status    available   to   opposite-gender

couples     and   consequently   produce    domestic   partnerships       that



      30
       While plaintiffs identified six elements as "constituent
elements" of marriage in their brief, that argument changed
somewhat in oral argument before this court.     When asked by
Justice Gableman for an example of a legal status that would be
"not substantially similar" under Plaintiffs' reading of the
Amendment, counsel gave the example of reciprocal beneficiary
agreement which was described as follows:

      [It] has an age restriction–you're age 18–it does not
      have a sex specificity or a consanguinity requirement–
      that you're of competency to contract–and you are not
      in a marriage or other domestic legal status. That's
      it–those are the requirements. That's something that
      would encompass the examples that we mentioned in our
      brief, of a granddaughter living with a grandfather,
      or two sisters.

Of course, that legal status, as described, has four of the
six "constituent elements," and is missing only the sex
specificity requirement and consanguinity prohibition.
When asked in a follow-up question whether it was accurate
to state that the Plaintiffs' constitutional argument was
concerned solely with the identified constituent elements
and was unconcerned with the size of the "bundle of
benefits and obligations" conferred on a legal status,
counsel confirmed that was correct.

                                      38
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would appear to be even more similar to marriage in respect to

the mix of genders and the capacity to bear children.

      ¶55    It is worth noting another point that undermines the

contention that the legal status is defined with reference to

marriage's         "constituent         elements,"       which     is         that       the

"constituent element" approach would appear to require us to

find unconstitutional Wis. Stat. § 40.02, which defines domestic

partners     for      purposes     of    determining     eligibility          for     state

employee benefits.          Wisconsin Stat. § 40.02(21d) states:

       "Domestic partnership" means a relationship between 2
      individuals that satisfies all of the following:

      (a) Each individual is at least 18 years                          old     and
      otherwise competent to enter into a contract.

      (b) Neither individual is married to, or in a domestic
      partnership with, another individual.

      (c) The 2 individuals are not related by blood in any
      way that would prohibit marriage under s. 765.03.

      (d) The 2 individuals consider themselves                           to        be
      members of each other's immediate family.

      (e) The 2 individuals agree to be responsible for each
      other's basic living expenses.

      (f) The 2 individuals share a common residence.
Wis. Stat. Ann. § 40.02.                 If we must strike             down as being

"substantially similar" to marriage any legal status that has

too   many       of   the   six    elements      Plaintiffs      identify        as      the

constituent       elements    of    marriage         (relationships      between         two

persons     of    specified      sexes    over   a    certain    age    who     are      not

closely related, are competent to consent and are not married to
someone else), the state's recognition of Chapter 40 domestic

                                           39
                                                                                No.    2011AP1572



partnerships for the purpose of granting state employee benefits

surely seems to run afoul of that test.                                  At oral argument,

Plaintiffs were given an opportunity to respond to this question

and merely noted that they were not challenging that provision

and that the provision did not create the kind of statewide

legal status that the Amendment prohibited.                                The problem it

presents for Plaintiffs is that during the ratification process

they    never       identified         the    Chapter        40     domestic      partnership

provision, which was in existence at the time, as conflicting

with    the    "substantially            similar"          Amendment      language.          Some

Plaintiffs clearly stated that existing benefits would not be

affected,31 yet the meaning they now ascribe to the Amendment

would       seem     to        invalidate         Chapter         40,    which        has    more

characteristics           in    common       with      marriage     than    a    Chapter     770

domestic partnership.

       ¶56    We    know       what    the    proponents          told    voters      that   the

Amendment      would      mean,       and    we     know    that    voters      approved      the

Amendment.         What the voters were told was that the Amendment did
not mean that government entities, including the legislature,

would be barred from "extending particular benefits to same-sex

partners as those legal entities might choose to do."32                                 That is

       31
       See ¶25, supra (Rep. Mark D. Gundrum characterized
opponents as "continu[ing] the effort . . . to deceive people
about the impact the man-woman marriage constitutional amendment
will have in Wisconsin" and flatly rejected the notion that it
would "seriously jeopardize any legal protections for unmarried
couples – gay or straight.").
       32
            See ¶30, supra.

                                                  40
                                                                                   No.     2011AP1572



what   the     legislature         did.             The    proper       interpretation           of   a

constitutional           amendment      is     what        framers      and    the       voters   who

approved      it     thought       it     meant.            The     voters         were    told       by

proponents, including the framers of the Amendment, that same-

sex    couples        could       be    granted            rights       notwithstanding           the

Amendment.          The message given to the voters did not present the

qualifications            in     regard        to        extending      benefits          that    the

Plaintiffs now claim.

                                          CONCLUSION

       ¶57    For        the   reasons         herein,       we     affirm         the    court       of

appeals' holding that Chapter 770 is constitutional, based on

the presumption of constitutionality, the Plaintiffs' failure to

meet the burden of proof, and the evidence we have reviewed in

accord       with    the       Dairyland        decision,          which      establishes         the

framework we use to interpret constitutional provisions.

       ¶58    The plain language of the Amendment prohibits only a

status "identical or substantially similar to" marriage, and by

implication         it    does    not     prohibit          what     is    not      identical         or
substantially similar thereto.                           There are important statutory

distinctions in the way the state treats marriage and domestic

partnerships and important differences in the lists of benefits

and obligations that inhere in the two types of relationships.

In light of the totality of those differences, Plaintiffs have

not overcome the presumption that Chapter 770 is constitutional.

       ¶59    Our        conclusion       is    supported          by     evidence        from    the

drafting      and        ratification        process——evidence                in    the    drafting
files that the framers of the Amendment intended specifically to
                                                    41
                                                                               No.     2011AP1572



allow legislation that provided a set of rights and benefits to

same-sex     couples.           We     are    supported         in     our    conclusion       by

evidence     that        voters        were     repeatedly           told      by     Amendment

proponents     that       the    Amendment         simply       would        not    preclude    a

mechanism for legislative grants of certain rights to same-sex

couples.      We    see     no       evidence      that    voters       who        approved   the

Amendment saw it as permitting those rights to be granted only

in    the   kind    of    scheme       Plaintiffs         now    suggest——that          is,    in

cohabiting domestic relationships that bear no resemblance at

all    to   marriage,      with        same-sex      couples         only     as     incidental

beneficiaries.           Of course the Amendment's opponents put out a

different message to voters, but as the court of appeals noted,

it makes sense to credit the notion, when the proponents prevail

in a referendum, that theirs was the message that resonated with

the    majority      of     voters.           Finally,          our     conclusion        draws

additional     support,         although      limited,          from    the    legislature's

careful     adoption      of     the    first      legislative         act     following      the

Amendment, adoption of Chapter 770 itself.


By the Court.—The decision of the Court of Appeals is affirmed.




                                              42
                                                                       No.    2011AP1572.ssa




     ¶60    SHIRLEY      S.     ABRAHAMSON,         C.J.        (concurring).              The

majority opinion correctly notes that the instant case does not

address    any    challenge         to    Article    XIII,      Section        13   of    the

Wisconsin Constitution.             Majority op., ¶1, n.3.

     ¶61    Although      I    agree        with    the    majority          opinion      that

Chapter    770   does    not    violate       Article      XIII,       Section      13,   the

restriction      of   marriage       to     opposite-sex        couples       provided      in

Article XIII, Section 13 has been challenged in Wisconsin courts

as unconstitutional.

     ¶62    This      court    recently       declined     to    accept       an    original

action     challenging        the        constitutionality        of     Article         XIII,

Section 13 under the United States Constitution.1                            Recently, the

federal district court for the Western District of Wisconsin

declared Article XIII, Section 13, unconstitutional under the

United States Constitution,2 in line with other recent judicial
decisions.3




     1
       Halopka-Ivery v. Walker, 2014AP839-OA, slip op. (Wis. May
22, 2014) (denying the petition ex parte, with Abrahamson, C.J.,
and Bradley, J., dissenting).
     2
       Wolf v. Walker, No. 14-CV-64-BBC,                        ___    F. Supp. 2d ___,
2014 WL 2558444 (W.D. Wis. June 6, 2014).
     3
       See, e.g., Bostic v. Rainey, 970 F. Supp. 2d. 456, 470
(E.D.   Va.  2014);   Bishop  v.   U.S.  ex rel. Holder,  962
F. Supp. 2d 1252, 1277 (N.D. Okla. 2014); Kitchen v. Herbert,
961 F. Supp. 2d 1181, 1195 (D. Utah 2013).

                                              1
                                               No.   2011AP1572.ssa


    ¶63   I write separately to call the reader's attention to

these developments of the law.




                                 2
                                                                       No.   2011AP1572.pdr

    ¶64     PATIENCE DRAKE ROGGENSACK, J. (concurring).                             I join

the majority opinion's thoughtful discussion of the petitioners'

challenge to Wis. Stat. ch. 770 and its reasoned decision that

is well grounded in foundational legal principles.                            I write in

concurrence       to     further        discuss          the        presumption           of

constitutionality and the importance of the burden of proof that

we must employ when a legislative enactment is challenged on

constitutional grounds.             I do so to illustrate that judicial

decision-making is not based on whether the statute reviewed is

grounded    in     a   liberal        legislative           philosophy        or     in   a

conservative      legislative       philosophy.             But     rather,        judicial

decision-making is driven by foundational legal principles that

require    challengers    to   overcome          the   statute's        presumption       of

constitutionality        and     to      prove         that       the        statute      is

unconstitutional beyond a reasonable doubt if their challenge is

to succeed.

                                I.     BACKGROUND

    ¶65     The    petitioners         request         us      to       conclude       that

Wisconsin's domestic partnership law creates a "legal status"
that is "substantially similar to that of marriage for unmarried

individuals"      contrary     to     the       prohibition       of     Article       XIII,

Section 13 of the Wisconsin Constitution, which provides in its

entirety:

         Marriage.   Section 13.   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.



                                            1
                                                                             No.    2011AP1572.pdr

                                          II.    DISCUSSION

       ¶66    In    order       to    prevail,            petitioners   must       overcome    the

presumption         that     Wisconsin's                  domestic   partnership         law   is

constitutional and prove that it is unconstitutional beyond a

reasonable doubt.            Tammy W-G. v. Jacob T., 2011 WI 30, ¶46, 333

Wis. 2d 273, 797 N.W.2d 854.                      The proof that is required is not

proof in an evidentiary sense, as we usually understand burdens

of proof.          Rather, it is proof that "establishes the force or

conviction with which a court must conclude, as a matter of law,

that a statute is unconstitutional."                           Dane County Dep't of Human

Servs. v. Ponn P., 2005 WI 32, ¶18, 279 Wis. 2d 169, 694 N.W.2d

344.

                                 A.       Standard of Review

       ¶67    Whether a statute is facially unconstitutional is a

question of law that we independently review, and while we give

no deference to prior court decisions, we do benefit from their

analyses.         State v. McManus, 152 Wis. 2d 113, 129, 447 N.W.2d

654 (1989).

                           B.    Constitutional Challenges
                                     1.     Judicial review

       ¶68    When we review a challenge to the constitutionality of

a statute, we apply foundational legal principles to each case

that    comes       before      us.             For       example,   there     is    a   general

presumption         that     all      legislative             acts   are     constitutional.

Bostco LLC v. Milwaukee Metro. Sewerage Dist., 2013 WI 78, ¶76,

350 Wis. 2d 554, 835 N.W.2d 160.                            The challenger must overcome

this presumption.            Id.      The challenger also must prove that the
statute      is    unconstitutional              beyond       a   reasonable       doubt.      GTE

                                                      2
                                                                          No.    2011AP1572.pdr

Sprint Commc'ns Corp. v. Wis. Bell, Inc., 155 Wis. 2d 184, 192,

454 N.W.2d 797 (1990).              The heavy burden that a challenger must

meet is based on our respect for the legislature as a co-equal

branch of government.               Ponn P., 279 Wis. 2d 169, ¶16.                              Our

procedures        promote      due        deference          to     the         legislature's

constitutional function.                 Id. (citing State v. Cole, 2003 WI

112, ¶18, 264 Wis. 2d 520, 665 N.W.2d 328).                          This deference is

grounded    in     the   recognition           that    creating      distinctions          upon

which     public      policies       for       the     state      are      based      is    the

legislature's constitutional prerogative.                         Doering v. WEA Ins.

Group, 193 Wis. 2d 118, 132, 532 N.W.2d 432 (1995).

    ¶69     We     resolve     any       doubt       about   whether        a    statute        is

constitutional by upholding the legislature's enactment.                                   Cole,

264 Wis. 2d 520, ¶11.                Therefore, it is insufficient for a

challenger       to   show    that       the    statute's         constitutionality             is

doubtful or even that the statute probably is unconstitutional.

Id.; Jackson v. Benson, 218 Wis. 2d 835, 853, 578 N.W.2d 602

(1998).         Furthermore,        given      alternate       interpretations             of    a

statute,    we     employ     the    interpretation          that    will        sustain    its
constitutionality.           Am. Family Mut. Ins. Co. v. DOR, 222 Wis. 2d

650, 667, 586 N.W.2d 872 (1998).                       Stated otherwise, if it is

shown    that    there   are     applications          or    interpretations          of    the

statute that would be constitutional, the challenge will fail.

Cole, 264 Wis. 2d 520, ¶30.

                                    2.    Application

    ¶70     The majority opinion carefully addresses petitioners'

facial    challenge      to    Wisconsin's           domestic      partnership        law       to
determine whether that law creates a "legal status" that is

                                               3
                                                                        No.   2011AP1572.pdr

"substantially        similar          to    that    of      marriage    for     unmarried

individuals."         It        does    so    within        the   court's     well-defined

framework       for    analyzing            facial     constitutional          challenges.

First, the majority opinion accords the domestic partnership law

"a strong presumption" that it is constitutional.1                             Second, the

majority opinion holds the challengers to their obligation to

overcome this presumption and to prove beyond a reasonable doubt

that the law is not constitutional.2                          In the process that it

applies, the majority opinion is consistent with the process

applied by the court in Madison Teachers, Inc. v. Walker, 2014

WI   99,       ¶76,   __    Wis.        2d    __,      __    N.W.2d     __,     where   the

constitutionality          of    the    2011       budget     repair    bill,    otherwise

known as Act 10, was challenged.

     ¶71       In Madison Teachers, the majority opinion applies the

same basic analytic framework as the majority opinion does here.

It accords the same presumption of constitutionality to Act 10.3

Madison        Teachers         also        resolves        any    doubt       about    the

constitutionality of Act 10 in favor of upholding the statute,

by requiring plaintiffs to prove the law unconstitutional beyond
a reasonable doubt, a burden they did not meet.4

     ¶72       Because understanding our decision today requires some

appreciation of the foundational legal principles employed in

     1
       Majority op., ¶17 (quoting Georgina G. v. Terry M., 184
Wis. 2d 492, 515, 516 N.W.2d 678 (1994)); see also ¶57.
     2
         Id.
     3
       See Madison Teachers, Inc. v. Walker, 2014 WI 99, ¶¶13,
76, __ Wis. 2d __, __ N.W.2d __.
     4
         See id., ¶¶44, 73.

                                               4
                                               No.   2011AP1572.pdr

the judicial decision-making that attends facial constitutional

challenges, I write to discuss that aspect of our decision, and

accordingly, I respectfully concur.




                                5
    No.   2011AP1572.pdr




1
