A rather eccentric challenge to the Wisconsin gay marriage amendment

The story is that a Wisconsin judge has ruled the plaintiff has standing (n.b. standing to bring the challenge in the Wisconsin courts - this isn't a federal case so the familiar federal standing test is inapplicable) but the merits are the interesting bit:

University of Wisconsin-Oshkosh political science teacher ... [William] McConkey, of Baileys Harbor, is challenging ... [Wisconsin's] constitutional amendment [banning gay marriage] on the grounds the question put to voters essentially asked two questions in one, which violates another section of the state Constitution that says the people of the state must have the opportunity to vote for each question separately when amending the Constitution.

Fair enough. Let's take a look. Article XII § 1 of the Wisconsin Constitution provides that after the legislature has approved one or more constitutional amendment(s), it must

submit such proposed amendment or amendments to the people[,] ... and if the people shall approve and ratify such amendment or amendments by a majority of the electors voting thereon, such amendment or amendments shall become part of the constitution; provided, that if more than one amendment be submitted, they shall be submitted in such manner that the people may vote for or against such amendments separately.

(Emphasis added). At face value, it seems to me that this requirement bars only the atomic submission of something like the (federal) Bill of Rights -- that is, a collection of distinct and independently-operating amendments -- to the voters with the stipulation that they must be voted up or down collectively. As I read it, the text operates to make clear that although the legislature can ask the voters to approve more than one amendment at a given time, voters must be able to vote for or against each amendment independently of the others; it certainly wouldn't seem to require (as McConkey appears to argue) that each amendment can have only one clause.

At absolute most, I would think Article XII might invalidate an amendment similar to the (federal) First Amendment, which contains several distinct but related ideas which at least could be coherently unpacked. But I find it hard to believe that if Wisconsin wanted to adopt an amendment that tracked the language of the (federal) Eighth Amendment, Article XII would require three separate questions to be voted on independently -- viz. "will the Constitution be amendmended to provide that excessive bail shall not be required," "will the Constitution be amendmended to provide that excessive fines may not be imposed," and "will the Constitution be amendmended to provide that cruel and unusual punishments shall not be inflicted" -- versus a single amendment with three clauses, "will the Constitution be amendmended to provide that excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted," which seems the upshot of McConkey's argument.

With the foregoing in mind, let's turn to the text of the challenged amendment. The text placed on the ballot was:

QUESTION 1: “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?”
(END)

So I guess the argument will be that the text could be unpacked to two questions: "shall there be a section 13 of article XIII of the constitution providing among other things that only a marriage between one man and one woman shall be valid or recognized as a marriage in this state" and "shall there be a section 13 of article XIII of the constitution providing among other things that a legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state?” But that seems textually untenable to me. The amendment creates a new section of the Constitution and populates it with two closely interpinked provisions - really two sides of the same coin. In terms of the examples from the federal Constitution discussed above, to the extent it's not a Second Amendment, where you really do have an absolutely singular point, the amendment seems much more like an Eigth Amendment than it does a First Amendment, still less an entire Bill of Rights. Unless there's some handy-dandy state precedents to lighten the load, I would think that if the text of Article XII is anything to go by, McConkey has a very, very heavy burden to shoulder.

I've emailed McConkey asking for a copy of the complaint. It'd be interesting to see the argument.

HT: Althouse.

Added: The relevant section of the complaint, reproduced with McConkey's permission:

1. McConkey is a voter in Wisconsin. The Department claims that being a voter does not give standing. McConkey argues that it certainly does when the Amendment was placed upon the ballot in conflict with Wisconsin’s own Constitution.

The legislature erred in its failure to divide the proposed amendment into more than one amendment as clearly stated in the Wisconsin Constitution in Article XII, Section 1, to wit, “… provided that if more than one amendment be submitted, they should be submitted in such a manner that the people may vote for or against such amendments separately.”

Any reasonable person knows that in the public discussions of the wide area of marriage between people of the same sex and the issue commonly referred to as “civil unions”, the two are separate issues and separate topics. The way this proposed amendment is drafted, the legal status of unmarried people of different genders is a third major issue. “A legal
status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.” Marriage between people of the same sex is one issue. The ability of people of the same sex to enter civil unions, to adopt and raise
children, share real and personal property and money through contracts and wills and spousal benefits, enter into the medical decision agreements, use sick or bereavement leave to take care of a partner or partner’s child, to receive pension or Social Security benefits, or to receive benefits form an employer, is another distinct subject. A third issue is the ability of unmarried people, of different genders, to enter into any contract, trust, debt, or agreement concerning children, to name but a few.

Indeed, legislative debates have identified these subjects as separate subjects during discussion in hearings and on the floor. The media has discussed the issues as separate subjects. Public polling has shown a wide disparity between the issues in public sentiment. There is no question that this amendment as written, is three separate amendments, and as written should not have been allowed on the ballot. Indeed, the Department treats the issue of marriage and domestic benefits as two separate issues in the Motion to Dismiss.

At first blush, I don't find this particularly persuasive, I'm afraid - I don't think that "any reasonable person knows" is remotely good enough to overcome the concerns raised in my main post. On the other hand, it'd be interesting to see if there's some kind of repository of amendments to the Wisconsin Constitution available online for comparison purposes.

Post facto:
More thoughts on the Wisconsin amendment challenge (12/4/07)
Updates (5/13/08)
An update on the McConkey case (11/4/09)