Thursday, November 29, 2007

I'm not a painter. I'm a sculptor voter.

Wow. A few months ago, I found the case of a "Christian, straight, married" professor in Wisconsin challenging his state's ban on gay marriage. Therein I predicted "the entire thing is likely to be tossed out because he doesn't have standing to sue."

Look how wrong I was!
A University of Wisconsin-Oshkosh political science teacher's legal challenge to a state constitutional amendment banning gay marriage and civil unions can proceed, a Dane County circuit judge ruled Wednesday, throwing out a motion by the state to dismiss the lawsuit.

Judge Richard Niess ruled that William McConkey, an instructor, had legal standing to file the challenge to the ban, which was approved by 59 percent of Wisconsin voters in a referendum after receiving approval by consecutive sessions of the Legislature.

How could this be? Well, in the original article it said he was challenging it under the 14th amendment of the United States Constitution, as well as the 1st amendment. However, in oral arguments before the court he argued that the amendment--which bans both gay marriage and civil unions--violated Wisconsin's constitution, which states that only one question at a time may be put to the voters when amending the constitution. The judge agreed, therefore, that he had standing to sue.
McConkey, who described himself as a "Christian, straight, married" father of nine and grandfather of seven when he filed the lawsuit, is not directly affected by the ban on gay marriages or the ban on civil unions. But [McConkey's lawyer, Lester] Pines argued that the proposed amendment violated the Wisconsin Constitution because voters had to endorse either both concepts in the question or neither, and therefore were deprived of their rights to oppose one or the other.

McConkey has standing to proceed in the lawsuit, Pines said, because his voting rights were violated.


[Niess] agreed with the argument posed by Pines that by containing two propositions in the same question -- banning gay marriages and banning civil unions -- the people were denied the right to vote on each.

"I believe there is a demonstrable injury to any voter who is required to vote on a question that is constitutionally defective," Niess said. "Voting is the very bedrock, the very lifeblood of the democracy we have," and needs to be protected "above all," the judge said.

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