By James Tillman

MADISON, WISCONSIN, November 5, 2009 (—The Wisconsin Supreme Court has declined to hear a legal challenge regarding the constitutionality of the state’s homosexual partnership law.

The law was challenged in July by Wisconsin Family Action, which argued that it violates an amendment to the Wisconsin state constitution passed by referendum in 2006. This amendment states not only that marriage must be between a man and a woman in Wisconsin but also that a “legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.”

The petition arguing the law’s unconstitutionality cites numerous eligibility requirements, entrance procedures, and rights pertaining to the partnership that are identical to those pertaining to marriage. For instance, both applicants must be at least 18 years old, share a common residence, be no closer in kinship than second cousins, not be married or in another domestic partnership, and share a relationship that one state document calls “the functional equivalent of a marriage.”

“A reasonable person observing this registry would easily conclude that it mimics marriage and is a test of the marriage amendment and the express will of the people,” said Wisconsin Family Action President Julaine Appling, lead plaintiff in the lawsuit, in a statement issued by the Alliance Defense Fund (ADF). “It borrows the requirements and eligibility standards for marriage, even to the point of requiring that the price of the registry certificate be the same as for a marriage license.”

“This new domestic partnership scheme is precisely the type of marriage imitation that the constitutional amendment approved by Wisconsin voters was intended to prevent,” said Brian Raum, Senior Counsel in the ADF. “Those who are determined to redefine marriage in Wisconsin are attempting an end-run assault on marriage hoping they can evade the clear language of the state constitution.”

Nevertheless, the petition, filed by attorneys of the Alliance Defense Fund and of Wisconsin Family Action, was rejected in a terse statement by the Supreme Court of Wisconsin. The court offered no explanation in its rejection of the suit, however, and attorneys for Wisconsin Family Action quickly said that they would bring the action in circuit court.

“We know that the court’s decision to decline original jurisdiction [the right to hear a case for the first time] can be based on any number of factors and implies nothing about the merits of the constitutional challenge,” Attorneys Richard Esenberg and Michael Dean said in a statement issued yesterday. “The action may now be brought in circuit court, and we are preparing our next steps to protect and uphold the constitution and the will of the voters.”

Lester Pines, an attorney hired by the state, promised that he would resist such action. “We are pleased the court didn’t take jurisdiction. We didn’t think it was the place this lawsuit should start,” Pines said. “We will prevail in the circuit (trial) court and all the way up to the Supreme Court if that’s what happens. This law is absolutely constitutional and an attack on it is just flat-out wrong.”

Some evidence, however, runs against Pines’ optimistic outlook. Lester Pines himself was hired by the Democratic Governor Doyle, who had helped slip the partnership law into the 2010-2011 state budget, because Wisconsin Attorney General John Byron Van Hollen had refused to defend the law, calling it unconstitutional in a statement issued on August 21st.

“My decision isn’t based on a policy disagreement,” Van Hollen said at the time. “As Attorney General, I prosecute and defend laws that I wouldn’t have voted for if I were a policymaker. That is what I believe the job entails.”

He continued: “But I will not ignore the Constitution. My oath isn’t to the legislature or the governor. My duty is to the people of the State of Wisconsin and the highest expression of their will—the Constitution of the State of Wisconsin.”

“When the people have spoken by amending our Constitution, I will abide by their command. When policymakers have ignored their words, I will not.”