Frederica Freyberg:
We move now to an item that was before the Supreme Court this week, the state's gay marriage ban, a ban that our next guest says is invalid because the legislature improperly acted to amend the constitution. Specifically, attorney Lester Pines claims the language of the 2006 voter-passed amendment itself was improper. The case Mr. Pines brought is against the state of Wisconsin, which is represented in court by the Department of Justice. The department declined our invitation to participate tonight or to provide a statement. Lester Pines, thanks very much for joining us.

Lester Pines:
It's a pleasure to be here.

Frederica Freyberg:
Well, some would say that you are trying to change the will of the Wisconsin voters on a technicality. What would you say to that?

Lester Pines:
Well, first of all, if the amendment wasn't submitted properly to voters, we don't know what the will of the people is. Secondly, the claim is that the amendment was submitted in violation of article 12, section 1 of the Wisconsin constitution. That's not a technicality. That's a very, very important part of our state constitution.

Frederica Freyberg:
Let me read what voters voted on when they went to the polling place. The language was this, “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.” Now, the core of your argument questions the validity of this because of something called the single subject rule. Why is that important?

Lester Pines:
Well, in the Wisconsin constitution when it was adopted in 1848 and debated in 1846 and 1848, the framers were very leery of direct democracy. The framers set up a system of government with an Assembly and a Senate and an executive and judicial branch. Very, very little in that constitution allowed the people of the state to directly participate. And when they did allow for direct participation, however, they made sure that what was submitted to the voters was to be submitted very clearly so the voters had a chance to really at dawn what the issues are.

Frederica Freyberg:
And why isn't this clear?

Lester Pines:
Well, it is clear. And from our point of view, it's clearly two separate issues. And from a common sense standpoint, and in fact during the debates on this amendment everyone knew it was two separate questions. I mean, first of all, the issue was defining marriage as between one man and one woman. And, secondly, an issue was tacked on to it which said, and for other people who aren't married, we're going to deny them ever the opportunity to get certain rights.

Frederica Freyberg:
How did the justices regard your arguments? I mean, how did that go? What was your feel when you left the chambers?

Lester Pines:
Well, first of all, I felt very good about the argument because the justices were exceptionally engaged in it and asked very important and probing questions, all of them. But one thing that I've learned as a lawyer over the last 35 years is you never read anything into an oral argument. What the justices asked about was what they were interested in. How they'll decide, I couldn't predict.

Frederica Freyberg:
Now, the state argues it complied with the single subject rule because the two subjects are related to the same purpose. Why doesn't that fly, in your mind?

Lester Pines:
Well, the whole case started out when the court of appeals sent this up to the Supreme Court on certification. It said, we need you to tell us how to determine purpose, because the previous three cases that have interpreted this section of the constitution didn't talk about that. So a lot of this is about — a lot of this case was about how you determine purpose. And our position is, you determine purpose from what the legislature wrote down, and in this case the way they described the amendment was to define marriage as between one man and one woman.  

Frederica Freyberg:
Now, the state also argued that your client didn't have a basis to sue because he would have voted no on both questions, and also that he didn't — he wasn't injured by it.  

Lester Pines:
Well, that's their standing question. That is just a question of whether or not a person has suffered a sufficient minimal injury to be able to come into court. And our position on that was very, very forcefully put before the court, which is article 12, section 1 is in the constitution to ensure that every person, every voter, has the opportunity to fully debate all of the issues, and it's not a matter of how one would have voted. It's a matter from our point of view of whether or not in this one exercise of direct democracy that Wisconsin voters get to participate in they could have the push and pull of democracy, that they could go to their neighbors and say, well, if you really believe that marriage is between one man and one woman, go ahead and vote yes on that question. But this other question is separate. Vote no on that. But if they're combined improperly, it interferes with the process of direct democracy.

Frederica Freyberg:
Now, Justice Prosser expressed concern about this opening the door to voter challenge. What about that worry?

Lester Pines:
Well, I think that it was an interesting question that Justice Prosser asked, and I think that the answer to that is is that the court has the ability to make equitable decisions and determine if a person has waited too long to challenge an amendment. I think that's the reasonable way to do it.

Frederica Freyberg:
When do you expect a decision?

Lester Pines:
Sometime in February or March, although it might be later than that. One can never tell when decisions come down.

Frederica Freyberg:
All right. Lester Pines, thanks a lot.

Lester Pines:
You're welcome. It's a pleasure.

Frederica Freyberg:
On another matter before the court this week, the Supreme Court refused to take up a case that challenges the legality of domestic partner benefits that were included in the Gov. Doyle’s current state budget. Attorneys for the group that filed the suit say they plan to re-file in circuit court.