Bascom Hill is the heart of the University of Wisconsin at Madison, the highest point on campus and home to university administration. From the hill, once the site of near-daily Vietnam War protests and now host to less frequent protests of another war, you can see the Capitol Building about a mile away. The two landmarks are connected by a pathway that's nearly straight, but not quite--and the campus' master planner has been known to joke that they were placed on a crooked axis so the university would never see eye to eye with state legislature.
Helgeland v. Wisconsin illustrates that rift in the ultra-progressive college town. The ACLU filed the suit on behalf of Jody Helgeland, a research specialist and grad student at UW-Madison; her female partner of more than 10 years; and five other similarly situated lesbian couples. They seek benefits such as health insurance and family leave rights for their partners, claiming because the state refuses to budget for them, their equal protection rights under the state constitution are being violated.
"Ultimately this case is about fair treatment for people who have relationships that are every bit as intense and meaningful as that of their coworker in the next cubicle, but they're not treated the same way," says Larry Dupuis, legal director of the ACLU of Wisconsin. "If you're not going to allow marriage--which we're not asking the state to do--then you have to find some way to treat them equally."
But the Helgeland plaintiffs face an uphill climb to such equality.
Facing the Battle
The state argues the claim is pre-empted by Phillips v. Wisconsin Personnel Commission, a 1991 case similar to Helgeland. In that case a state employee sought benefits for her lesbian companion. The court found the state's policy distinguished on the basis of marital status--which was not in violation of the Wisconsin Fair Employment Act--not sexual orientation. The state has moved for summary judgment on that ground.
Further muddling Helgeland are a number of Wisconsin municipalities trying to intervene as defendants--although no plaintiff is seeking relief from them--which has stalled the case in the Wisconsin Supreme Court. "It's a whole series of things that could complicate matters and make us litigate something that has nothing to do with what we're trying to achieve," Dupuis says.
Even if plaintiffs overcome those hurdles, a victory could be overridden by the 2006 state constitution amendment defining marriage as "only between one man and one woman." A similar scenario arose after the University of Michigan began providing domestic partner benefits--when a nearly identical constitutional amendment passed in Michigan, an appeals court found it "prohibits public employers from recognizing same-sex unions for any purpose," including the provision of benefits.
"The proponents of the Wisconsin amendment said they would not use it to try to prevent state employees from receiving domestic partner benefits, but it's very similar verbiage to the Michigan amendment," says Jack Lord, a labor and employment partner in Foley & Lardner's Orlando office and co-chair of its Gay and Lesbian Affinity Group. "It basically says anything that's similar to the benefits you'd get from marriage can't be given."
Still, proponents of domestic partner benefits have hope. "Courts across the country have been split in the past over the constitutionality of denying benefits and protections to same-sex couples," says Lara Schwartz, legal director of the Human Rights Campaign. "It's just a matter of hoping this court does the right thing."
Paving the Way
Until then same-sex couples in Wisconsin will be closely following Helgeland--and Lord points out that while a decision either way won't directly affect private employers, they shouldn't ignore the case either.
"With a lot of social changes, the federal government or governmental entities are the first to step up to the plate," he says, citing the Rehabilitation Act of 1973, the first law that said governmental agencies or private employers that received federal funding could not discriminate against people with disabilities.
Although it did not apply to private employers, the Rehab Act paved the way for the ADA by making it less acceptable to discriminate against people with disabilities.
"If the plaintiffs [in Helgeland] win, the public employees in Wisconsin would have to provide these benefits, and it would be seen as not that big a deal," Lord says. "?EUR?But if our university system is doing it, our departments of Corrections and Transportation are doing it--why shouldn't private employers do it? The government leads the way in social trends."
Such a turn of events would be celebrated by the UW system, which has long asked for state funding to provide domestic partner benefits. It stepped up the effort last year after a researcher described by his department as a "young superstar" left the university--already struggling to retain faculty--for one that would provide benefits to his same-sex partner. That issue is of equal importance to private employers.
"It makes poor sense for Wisconsin to discriminate against a group of its citizens," Schwartz says. "The top corporations in this country know that to recruit the best employees and stay competitive they have to promote diversity and equality. That's something top candidates are looking for."