Marquette Law Review Volume 100 Article 7 Issue 3 Spring 2017

Wisconsin Law in the Age of Individualism Joseph A. Ranney DeWitt Ross & Stevens S.C.

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Repository Citation Joseph A. Ranney, Wisconsin Law in the Age of Individualism, 100 Marq. L. Rev. 923 (2017). Available at: http://scholarship.law.marquette.edu/mulr/vol100/iss3/7

This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized editor of Marquette Law Scholarly Commons. For more information, please contact [email protected]. 39285-mqt_100-3 Sheet No. 131 Side A 06/19/2017 09:53:44 ...... 957 ...... 935 DUCATIONAL DUCATIONAL EPRODUCTIVE E R ARRIAGE * M ONSTITUTIONS NDIVIDUALISM AY I C ECLINE OF G (University of Wisconsin Press, forthcom- D ANNEY to Wisconsin during the mid-19th HE AW BORTION AND BORTION HE L TATE :T A. R ial schools as part of an effort to pre- :T :A :S NTRODUCTION XPRESSIVE E MERICAN OSEPH I. I A J ) 6/12/17) 1:58 PM ...... 943 SCENDANT GE OF A INDIVIDUALISM A ELETE ...... 923 D ...... 965 ...... 929 OT OT HAPING OF N ATTLEGROUNDS ATTLEGROUNDS ATTLEGROUNDS S O B B B (D ...... 951 DOCX . and to Hunt and Fish ...... 936 ...... and to Hunt and Fish 940 ...... LanguageAmendments ODERN ODERN ODERN WISCONSIN LAW IN THE AGE OF IN THE LAW WISCONSIN SSIMILATIONISM OURTS IN THE ONCLUSION HOICE EVOLUTION INAL NDIVIDUALISM NTRODUCTION A. The Erosion957 of Consensus ...... B. 962 The New Federalism ...... R A C B. Expressive Constitutionalism: Gambling ...... 938 A...... Constitutionalism: Expressive The Right to Bear Arms Gambling Constitutionalism: B. Expressive C. Conservative Constitutionalism: DOMAs and English- -F As European Catholics flowed in M K ANNEY ISCONSIN AND THE C Y III. M III. century, they established paroch serve their religion and culture in their new homeland.serve their religion and culture Many resisted old-stock Wisconsinites’ vision of the state’s public schools as common V. M V. V. C V. torney, DeWitt Ross & Stevens S.C., Madison, Wisconsin. This Article is adapted from * Adjunct Professor and Schoone Visiting Fellow, Marquette University Law School; At- W 5R I. I I. VI. VI. C ing), which was written under the auspices of the Schoone Fellowship. The author gratefully ing), which was written under the auspices of the gratefully Schoone Fellowship. The author acknowledges the Fellowship’s and Marquette Law School’s support of this project. II. I II. IV. M 39285-mqt_100-3 Sheet No. 131 Side A 06/19/2017 09:53:44 06/19/2017 A No. 131 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 131 Side B 06/19/2017 09:53:44 3 M K C Y 558–65 ISCONSIN W EOPLE HE P Van Straten v. The justices :T 7 ex rel. 4 USTICE J MERICAN A [100:923 [100:923 69–74, 87–89 (1970). , 180 Wis. 109. ORTRAITS OF vision of education and had CHOOL ISTORY OF THE S attention to racial assimilation in H UBLIC . Van Straten Since the late 19th century the court Since the late 19th P 6 chial as wellchial as students. as public-school decades the culture of assimilation and ELIGIOUS note 254 and accompanying text. Dissent was not unknown among jus- the ex rel 5 (Trina E. Gray et al. eds., 2d ed. 2003), 57–58 (Timothy (Trina E. Gray et al. eds., 2d ed. 2003), 57–58 ,AR State ) 6/12/17) 1:58 PM see infra IETY IN THE EARS ,P MARQUETTE LAW REVIEW MARQUETTE ELETE D 150 Y HLSTROM OT OT Reynolds v. Nusbaum, 17 Wis. 2d 148, 115 N.W.2d 761 (1962). N O IRST E. A , 249 Wis. 94; F Weiss v. Dist. Bd. of Sch. Dist. No. 8 of Edgerton, 76 Wis.44 N.W. 2d 177, (D they then turned their ICHAELSEN . § 40.53(1) (1962). S 8 ex rel. ’ M DOCX TAT . ex rel. YDNEY Over Wisconsin the next century, the course of lawmakers . art. I, § 23 (amended 1967). 1 .S Costigan v. Hall, 249 Wis. 94, 23 N.W.2d 495 (1946); State OURT but in 1961, supporters finally triumphed supporters but in 1961, when the legislature State Costigan S 2 IS C INAL OBERT -F ONST . See .See . See 6. 92% of the court’s decisions were unanimous; in 1960 the figure was 88%. In 1940, 8. J. Res. 46, 77th Leg., Reg. Sess. (Wis. 1965); J. Res. 13, 78th Leg., Reg. Sess. (Wis. 1967); 2 3. W 1 7. State 4 5. and background, see P As to the justices’ religion Supporters had hoped they wouldSupporters had have at least some judicial allies But during the next three .C ANNEY IS UPREME Brown), 59–60 (George Currie), 72 (Thomas Fairchild), 63–64 (E. Harold Hallows), 64–65 (Wil-Brown), 59–60 (George Currie), 72 (Thomas liam Dieterich), 73 (Myron Gordon), 65–66 (Horace Wilkie). Figures in author’s possession; 967 (1890); W had honored the old-stock assimilationist consistently rejected efforts to subsidize parochial schools. consistently rejected efforts to subsidize in an era when Catholics were finding their political and increasingly the court’s culture of they failed to take into account legal voice, but uniformity. The justices’ backgrounds were similar: all were men who had risen from and had spent most relatively modest of their origins lives in law and government. agreed to fund busing of paro fund busing of agreed to (1972); R S 924 and assimilating for educating ground Wisconsin all back- of children grounds. Their victory was however: short-lived, later that year, Wisconsin’s su- preme court struck down funding the law as a breach of the constitu- separation betweentionally-required and state. church 5R Milquet, 180 Wis. 192 N.W. 109, 392 (1923). were course now. not about to change overrode the court’s decision in 1967 consensus eroded badly. Voters by amending the state constitution to authorize public funding of paro- chial busing; tices but they strove to avoid it. tices but they strove rejected parochial school supporters’ efforts to obtain state financial to obtain supporters’ efforts parochial school rejected support the Milwaukee public school system (MPS). By 1990 many Wisconsin- ites, black and whiteschool integration was alike, had concluded that a the legislature struck another blowfailure and in the spring of that year 39285-mqt_100-3 Sheet No. 131 Side B 06/19/2017 09:53:44 06/19/2017 B No. 131 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 132 Side A 06/19/2017 09:53:44 925 as a victory of The dissenters 13 Davis 1 (Roger K. Newman ed., AW L 11 The majority responded to The majority 15 an “illustration of Wisconsin’s re to subvert the unifying, de- MERICAN pponents’ hopes that the court pponents’ hopes that the court A note 254 and accompanying text. rther improve the quality of educa- cluded Shirley Abrahamson, who had onism; of their lan- the contentiousness See infra note 5, at 78 (Ceci), 81 (Abrahamson), 82 (Bablitch); note 5, at 78 (Ceci), 81 (Abrahamson), 82 and Justice Abrahamson criticized the —and become the court had also less mon- 14 10 ICTIONARY OF supra , D ) 6/12/17) 1:58 PM Two to the law later, a challenge years reached 9 (1992) the court narrowly (1992) the court upheld the school ELETE USTICE J D OT OT N O In 1995 the legislature allowed of vouchers in paro- use IOGRAPHICAL (D B 16 DOCX ALE WISCONSIN LAW IN THE AGE OF INDIVIDUALISM AGE OF THE LAW IN WISCONSIN ORTRAITS OF . Y P at 546 (Ceci, J., concurring). at 565 n.1 (Bablitch, J., dissenting). at 562 (Abrahamson, J., dissenting). at 512 n.2. INAL HE Davis v. Grover -F Both the majority viewed and the dissenters T .Id. .Id. .Id. .Id. .See 12 12. Davis v. Grover, 166 Wis. 2d 501, 480 N.W.2d 460 (1992). 13 14 15 16 9. 1989 Wis. Act 336. 10. 2010 the figures 1980, 75% of the court’s decisions were unanimous; in 2000 and In 11 In M K ANNEY C Y tion and life.” Abrahamson by praising school choice as innovation and willingness to . . . fu olithic in other ways. It now in become Wisconsin’s first female justice in 1976, and William Bablitch formerand Louis Ceci, whose legislators had been heavily perspectives timeinfluenced by their political arena. in the 2009), 1 (Abrahamson). 2017] assimilationagainst law, school-voucher first the nation’s by enacting students who to parents and public subsidies providing wished to leave MPS schools. for private 5R majority for “permit[ting] the legislatu mocratizing purpose of public education.” guage mirrored the law’s controversy that had surrounded the political enactment and marked an end to a core consensus-era value, namely circumspection of language and avoidance of personal attacks. Justice MPS bluntly attacked as a failure was part of the majority, who Ceci, choice a chance!” and urged the dissenters to “give individual choice over assimilatiindividual choice see also chial schools for the first time, but o would strike down the law based on its 1962 ruling were soon dashed. voucher law, and it also showcased the demise of the culture of consen- sus. decreased to 47% and 18% respectively. fired back: Justice Bablitch labeled Ceci’sfired back: Justice Bablitch labeled opinion “totally inappropriate and judicially indefensible,” a supreme had changed dramatically court that 1962. Judicial con- since sensus was declining—by wouldthe 1990s the court the end of divide in more than half of its cases 39285-mqt_100-3 Sheet No. 132 Side A 06/19/2017 09:53:44 06/19/2017 A No. 132 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 132 Side B 06/19/2017 09:53:44 M K 525 C Y 12–13 OWLING ,B ISTORY ATERGATE TO cert. denied, H W UTNAM D. P toward a view of 18 MERICAN 21 A 173–80, 283–85 (2000). The OBERT TATES FROM Since the 1960s many [100:923 [100:923 S 22 note 20, at 4–8. NITED supra , U OMMUNITY C note 18, at 12–13. HE UNISHMENT IN 23 P g historian Daniel Rodgers to label 3 (2011). :T ODGERS supra , 17 IANT MERICAN G A RACTURE RIME AND F The shift first became apparent during the RIEDMAN ,C In the words of one observer, expressive in- 20 ESTLESS ) 6/12/17) 1:58 PM 19 GE OF note 19, at 59–63, 75–85, 167–70; R ,R EVIVAL OF ,A MARQUETTE LAW REVIEW MARQUETTE R ELETE note 19, at 42–49; R D RIEDMAN supra note 20, at 220. , OT OT N supra ODGERS M. F O , ATTERSON supra (D , T. R T. P OLLAPSE AND DOCX 47–52, 69–75 (2005); F ATTERSON . C P ANIEL ODGERS AWRENCE ATTERSON ORE INAL HE AMES -F .G :T . See 18. L 20. D 23 17. 835, 879, 578 N.W.2d 602, 621 (1998), v. Benson, 218 Wis. Jackson 2d 21. P 19. J 22. R The Wisconsin shift mirrored court’s a larger Americanaway shift Expressive individualism one has proven to have a darker side, ANNEY LONE USH V U.S. 997 (1998). from view the traditional a view of liberty, divergence that tolerated universe of acceptable discourse, only within a finite the modern era the “Age of Fracture.” Americans have shifted away from communal forms of activity such as in social and civic organizations; they churchgoing and participation now spend much of their time with alone or interacting small groups, usually of like-minded people, leadin causes of this fracture cannot be neatly identified but they include increasing distrust of gov- causes of this fracture cannot be neatly identified but they include increasing distrust ernment, first generated by the Vietnam War (1963–75) and by the Watergate scandal that led mid-cen- to President Richard Nixon’s resignation (1973–74), and the transition away from a less pre- tury economy dominated by large corporations and unions to a more changeable, than on dictable economy in which wealth and success depend more on individual initiative teamwork. The electronic revolution that began in the late 1970s has also been a contributor: Much of the time that Americans formerly spent communicating face-to-face is now spent A B 926 between separation of strict old rule The the ma- said and state, church by a new been superseded jority, had Wisconsin . . . [—]ac- “tradition[] parents the primarycord[ing] role in the education decisions regarding children.” of their and upbringing 5R liberty as “expressive individualism”liberty as “expressive that eliminated boundaries of the promotedthat universe and Americans’shape their own right to lives limit. without and views which has “conjured up . . . something smaller, more voluntaristic, frac- fromtured, easier to exit, and guarded others.” (1993). turbulent 1960s and 1970s, and it has been a force behind nearly every and 1970s, and it has been a force turbulent 1960s important social movement century. of the past half dividualism had been . of human caused “conceptions . . nature that thick with history [to] institutions and context, social circumstance, of humang[i]ve way to conceptions nature that stress[ ] choice, agency, desire.” performance, and 39285-mqt_100-3 Sheet No. 132 Side B 06/19/2017 09:53:44 06/19/2017 B No. 132 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 133 Side A 06/19/2017 09:53:44 S ’ & 24 EGAL AHN The The :L 26 27 MERICA A note 19, at 927 AMILIES supra F , individualism, itutional amend- AUSES OF LUE C .B ATTERSON AMILIES V F established new constitutional with people at other levels. with people hed a vivid trail of anger and trail of anger hed a vivid ation and incomeation and levels increas- ED to legal expressive to legal expressive 66–68 (2010); P ,R HARACTERISTICS AND but other state const to irretrievable loss of all ideals. to irretrievable loss ULTURE ?C C ARBONE C ATION ) 6/12/17) 1:58 PM N UNE ELETE REATION OF LUE D &J B C note 20, at 4. OT OT N O 1–48, 119–222 (Pietro S. Nivola & David W. Brady eds., 2006); C AHN supra (D , C note 41 and accompanying text. note 24, at 62–65. ED AND and elicited a powerful reaction that has influ- conservative DOCX WISCONSIN LAW IN THE AGE OF INDIVIDUALISM AGE OF THE LAW IN WISCONSIN R . OLITICS 25 P supra AOMI ODGERS INAL , -F . See infra . See 24. N 27 25. R 26 This Article uses Wisconsin as a lens to examine waysin which the The Article begins by examining the role that state lawmakers in Expressive individualismExpressive polarized increasingly an produced has M K ANNEY ARBONE OLARIZATION AND THE OLARIZED C Y ments used to promote have been modern conservative values, particu- larly defense-of-marriage (DOMA) amendments enacted in order to block legalization of gay marriage amendments and restricting use of Article then turns to several fields in which the struggle between expres- sive individualismduring recent and its opponents continues. First, decades Wisconsin and other states have rights promoting individual expression including the right to bear arms, and to gamble, to hunt and fish, struggle between expressive individualism and its opponents has shaped modern American state law. Wisconsin is a useful lens because it has made important contributions most first voucher system, notably by adopting the nation’s and because modern Wisconsin law of other struggles over has reflected the course expressive individualism. ingly share each other’s political and cultural viewpoints, political and cultural each other’s ingly share seek each and have minimalother out interaction nation: Americans with similar educ C P P sitting alone with a computer, communicating with others remotely and often anonymously. sitting alone with a computer, communicating Id. 2017] individualismExpressive “etc has also memory” 5R enced modern American much society fully as as the forces it opposes. Modern conservatismhas many but its common sides hallmarks in- clear codes of moralityclude a desire for skepti- and behavior; a basic cism of deviance change; and a fear that toleration of the value of social from traditional mores will lead 81–83, 167–70. Wisconsin and elsewhere in the meteoric played rise of gay and lesbian rights after 1970, an unambiguous triumph for expressive individualism and perhaps its most important contribution to American law. 39285-mqt_100-3 Sheet No. 133 Side A 06/19/2017 09:53:44 06/19/2017 A No. 133 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 133 Side B 06/19/2017 09:53:44 M K C Y Third, the Third, 29 turned to in- 31 , Since the late 33 [100:923 [100:923 Expressive individual- 34 32 Roe v. Wade and expand civil rights inde- ilationists have given ground in ilationists have g how expressive individualism It explains how oppo- abortion will remain the case, and how per- 30 alism will leave on American law, recedent; however, the doctrine has ) 6/12/17) 1:58 PM and judicial opposition. and judicial MARQUETTE LAW REVIEW MARQUETTE ELETE D OT OT N O (D notes 42, 44, 80–84, 87, and accompanying text. notes 42, 44, 80–84, 87, and accompanying note 180 and accompanying text. notes 219–20, 236–38, 241–46, and accompanying text. notes 219–20, 236–38, 241–46, and accompanying text. note 250 and accompanying text. notes 267–71, 281–82, and accompanying text. DOCX . INAL -F 28 . See infra . See infra . See infra . See infra . See infra . See infra 28 29 30 31. 410 U.S. 113 (1973). 32 33 34 The Article concludes by examinin Second, the ArticleSecond, examines individualism expressive as mani- ANNEY has penetrated the culture of state courts. The decline of judicial con- has penetrated the culture of state sensus has not been limited to Wisconsin: dissent and rhetorical rates of vitriol have risen within many state supreme courts. fested in the voucher movementfested in increasing preferment and in courts’ of Assim authority. parental over public voucher programs continue stoutly to oppose these fields but they and reforms;other individualist the Article explains how, the end, the fate in of voucher programs in Wisconsin and elsewhere may turn on varia- education. provisions regarding tions in state constitutional ism clearly has been the central theme of late 20th century and early 21st century American law; how long that manent a mark individu expressive remain to be seen. nents, after failing in their quest to overturn nents, after failing 928 Article The settings. in official English than other languages examines the modern origins and the historical each amendment course of move- ment. 5R Article examines the struggle in Wisconsin laws and other states over limiting women’sabortion. access to 1970s a number of state judges and courts, including Wisconsin’s Shirley Abrahamson, have espoused a “new federalism” which doctrine their individualismholds that state courts should express by reading protect state constitutions expansively to elicited much popular pendent of federal constitutional p pendent of federal constitutional direct legal restrictions whichdirect legal restrictions have enjoyed much success but continue to meet with opposition, and it examines steady of legal the evolution boundaries between permissible and impermissible restriction of women’s ability to control abortion decisions. 39285-mqt_100-3 Sheet No. 133 Side B 06/19/2017 09:53:44 06/19/2017 B No. 133 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 134 Side A 06/19/2017 09:53:44 36 In TATE QUAL 37 -S E Y -B 929 TATE EVOLUTION The road to EARCH FOR S ,AS 39 R ONG UND F L HE :T ARRIAGE CTION , 3–4, 22–80 (2012). A M . 275, 281–82 (2013). TORY EV S AY state courts held that constitu- state courts held although in the 1950s Califor- although in the OLICIES G P 35 ROGRESS wisdom goal so of pursuing that IGHTS revailing social attitudes toward social attitudes revailing P inch forward in other areas and inch forward in other areas and R by 2010, twenty-one states had fol- HE B.U. L. R 38 public opinion became more gay- 40 AY :T G , 93 AWS AND During the early 1970s three state su- L MERICAN Backlash Politics: How Constitutional Litigation Has Ad- 41 A 8–20 (2014). ) 6/12/17) 1:58 PM SCENDANT AW AND THE A ,L ELETE D ENTER FOR OT OT EMOCRACY ,C RANK N note 35, at 28–44. D F O ONDISCRIMINATION UNT (D N H supra , , supra note 35, at 44–48, 75–77. ALTER IVIDED DOCX WISCONSIN LAW IN THE AGE OF INDIVIDUALISM AGE OF THE LAW IN WISCONSIN . William N. Eskridge, Jr., D Kerma v. State Liquor Auth., 233 N.E.2d 833 (N.Y. 1967); One Eleven Rest. Corp. W RANK RANK INAL EROME NDIVIDUALISM -F . See . See . See 37. F 40. F 38. 1981 Wis. Act 112. 39. J 41 36 35 Gay activists envisioned a gay-marriage campaign as early as 1970, Mid-20th-century law p reflected M K II. I ANNEY XAMINATION OF C Y USTICE IN A Wines & Liquors, Inc. v. Div. of Alcoholic Beverage Control, 235 A.2d 12 (N.J. 1967); Stoumen Beverage Control, 235 A.2d 12 (N.J. 1967); Wines & Liquors, Inc. v. Div. of Alcoholic v. Reilly, 234 P.2d 969 (Cal. 1951). tional rights of association protected gays as muchtional rights of association as other Americans. nia’s supreme and several eastern court lowed suit and governors in nine other states had issued orders prohib- in nine other states had lowed suit and governors iting such discrimination in government employment. preme courts rejected arguments equal-protection that constitutional clauses required that marriage rights be extended to homosexual as well gay-rights groups then counseled as heterosexual couples; national against further challenges until early in the new movement. although they were divided over the although they were divided over gays. Most Americans at best; gay lifestyles distasteful considered gay sex was sodomy under the subject to prosecution laws force in nearly in and manyevery state be barred from that gays should believed congre- other public places, gating in bars and E J 2017] Following the 1969 Stonewall incident, in which a police raid on a New triggered one of the first massYork City gay bar protests and expres- a movementsions of gay pride, civil rights. began to expand gays’ 5R vanced Marriage Equality in the United States 1981, Wisconsin to prohibit employment became the first state discrim- sexual orientation; ination based on social and legal acceptance was long. Early antidiscrimination ordi- and somenances elicited strong reactions efforts by successful repeal opponents, but reform continued to public opinion gradually softened. 39285-mqt_100-3 Sheet No. 134 Side A 06/19/2017 09:53:44 06/19/2017 A No. 134 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 134 Side B 06/19/2017 09:53:44 , M K C Y note 35, 51– supra . , See id RANK failed in their quest to failed in their quest [100:923 [100:923 Baehr v. Miike, 994 P.2d 566 Baehr see also of gay marriages performed in all relationships containing any all relationships See Research Guides: Same-Sex Marriage Laws ituted unconstitutional gender-based ituted unconstitutional Hawaii’s legislature opened the door 48 . Oklahoma, South Carolina, Texas, Utah, and Wisconsin. (1993), Hawaii’s supreme surprised the court ) 6/12/17) 1:58 PM See id went far for most too Americans: between 1993 MARQUETTE LAW REVIEW MARQUETTE 47 ELETE D L., http://moritzlaw.osu.edu/library/samesexmarriagelaws.php note 41, at 282–85. OT OT Baehr N O 43 supra (D The DOMAsto mar- in scope: ten referred only varied OF Baehr v. Lewin . 44 DOCX . In the early 1990s Hawaiian 1990s the early In mounted activists a new chal- Baehr v. Lewin, 852 P.2d 44 (Haw. 1993); Baehr v. Lewin, 852 P.2d 44 (Haw. 1993); OLL and four broadly prohibited and four broadly 42 C INAL 46 sixteen, including Wisconsin’s, sixteen, including referred to marriage and civil -F 45 . See . 44. DOMAs in Alaska (1998); Nevada and Nebraska (2000); Michigan, were enacted Ar- 43 48. Eskridge, 47. Those of Michigan, Nebraska, South Dakota, and Virginia. 45. Those of Alaska, Arizona, California, Colorado, Missouri, Mississippi, Montana, Ne- 46. Those Kentucky, Louisiana, of Alabama, Arkansas, Florida, Georgia, Idaho, Kansas, 42. Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973); Baker v. Nelson, 191 N.W.2d 185 Although who the activists filed suit in ANNEY ORITZ (Haw. 1999); Baehr v. Miike, 950 P.2d 1234 (Haw. 1997). kansas, Georgia, Kentucky, Louisiana, North Ohio, Oklahoma, Utah, Missouri,Dakota, Mis- sissippi, Montana,Kansas and Texas (2005); South Dakota, Virginia, Al- and Oregon (2004); abama, Idaho, South Carolina, Wisconsin, Florida, Arizona, Colorado, and Tennessee (2006); (2012). and California (2008); and North Carolina M and 2008 more the states, including Wisconsin, than half de- enacted fense-of-marriage amendments constitutional (DOMAs) barring gay marriage recognition and prohibiting other states. riage; elements marriage. of 55. 930 friendly. 5R vada, Oregon, and Tennessee. discrimination. nation by holding based on the state’s equal-protection clause (whichequal-protection it on the state’s holding based nation by of the right clause) that denial than the federal was broader concluded of marriage gay couples const to lenge and in lenge and [https://perma.cc/LDS9-MWJK]visited Apr. 24, 2017). (last North Carolina, North Dakota, Ohio, See id marry, better than they knew. they succeeded Hawaii’s supreme court argumentshad opened the door to hope that for a constitutional right of gay marriage might prevail someday, and movement leaders began other states whereto cultivate political support in they believed gay marriage might have a chance. (Minn. 1971); Singer v. Hara, 522 P.2d 1187 (Wash.(Minn. Ct. App. 1974); F v. Hara, 522 1971); Singer a bit more: it enacted the nation’s first domestic in 1998 partnership law unions; 39285-mqt_100-3 Sheet No. 134 Side B 06/19/2017 09:53:44 06/19/2017 B No. 134 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 135 Side A 06/19/2017 09:53:44 Opinions of The court 931 50 (1999) it held (1999) it see also . of 1777, ch. I, § 7. (2003) Massachu- but neither can it tol- ’s holding). ONST The legislature com- The legislature 52 .C sitation rights,sitation and gov- T Baker v. State Baker v. It stopped short of requir- It stopped short 53 and the civil-unions law and the civil-unions Goodridge 51 A later, Vermont’s year su- 49 and another turning point soon and another turning Vermont’s justices had phrased Baker 54 throughout the ensuing decade of throughout the ensuing decade of 55 excluding gay couples fromexcluding gay couples the ben- “common mandated benefits” clause dissenters laid out the basic arguments that ) 6/12/17) 1:58 PM tance rights, hospital vi hospital rights, tance e door still wider:e door still in ELETE D Goodridge “cannot control such prejudices “cannot control such prejudices note 41, at 285–86. OT OT N O supra (D , 798 N.E.2d at 968. The 57 Goodridge v. Department Health of Public 744 A.2d at 882. , 744 A.2d at 889. DOCX WISCONSIN LAW IN THE AGE OF INDIVIDUALISM AGE OF THE LAW IN WISCONSIN . at 884–87. INAL -F but Chief Margaret Justice Marshall in the Massachu- and others . Baker, .Id. . Baker . Goodridge 56 51 52 55. Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003); 53. Act effective July 1, 2000, H. 847, 2000 Vt. Acts & Resolves 72–88. 54. Eskridge, 56 49.1211–12. Act 118, 1997 Haw. Sess. Laws, 1211, effective July 8, 1997, H.B. 50. Baker 1999). Article I, § 7 of the Vermont constitution v. State, 744 A.2d 864, 886 (Vt. 57 Efforts in Vermontoverturn to M K ANNEY C Y rejected opponents’ arguments that opponents’ rejected efits of marriage promoted procrea- interest in encouraging the state’s childbearing wastion, noting that not a requirement of marriage and that many married couples were childless. litigation: in addition to arguing that confining marriagethat confining litigation: in addition to arguing to heterosexual gay-marriage would raise opponents ing that gay couples be alloweding that gay couples to marry, but it made clear that they must the legal benefits of marriage. be given all their decision in soft terms, as “a recognition of our common as “a recognition their decision in soft terms, human- ity,” arrived: in plied by enacting a civil-unions lawplied by enacting in 2000. 2017] inheri certain extending 5R ernment partners. to registered benefits through enactment of a DOMA failed, the Justices to the Senate, 802 N.E.2d 565 (Mass. 2004) (advising the Massachusetts legislature that a civil-union law would not suffice to comply with provides that “government is, or ought to be, provides that “government is, or ought to instituted for the common benefit, protection, and not for the particular emolument or and security of the people, nation or community, set of persons.” V advantage of any single person, family, or setts majority were more hard-edged. Marshall denounced opposition to gay marriage as being “rooted in persistent prejudices”; the state con- stitution, she said, erate them.” preme th court opened that the Vermontthat the constitution’s that gay couples receive the “common couples receive that gay security protection, and benefit, that Vermont marriage law provides opposite-sex couples.” setts’s supreme court held by a 4-3 vote that its state constitution’s that the title as wellequal-protection clause required as the incidents of marriage to gay couples. be extended 39285-mqt_100-3 Sheet No. 135 Side A 06/19/2017 09:53:44 06/19/2017 A No. 135 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 135 Side B 06/19/2017 09:53:44 , M K C Y ISCONSIN W Goodridge , 110 P.3d 91 (Or. In Wisconsin, TATE OF 62 but the case pro- 61 60 vacated [100:923 [100:923 The legislature approved a The legislature couples and that it wascouples and that not in- In 2006 New Jersey’s supreme 63 67 they argued that the court wasthe court that argued they After a vigorous campaign in which 58 65 64 endment narrowly, failed Brause v. State Dep’t of Health & Social Servs., 21 P.3d 357 2014 WI 96, ¶¶ 22–37, 358 Wis. 2d 132, 853 N.W.2d 888. The ) 6/12/17) 1:58 PM , See MARQUETTE LAW REVIEW MARQUETTE ELETE note 41, at 302–03. More marriage stressed that gay practically, they and held that the state’s equal protection and due and held that the state’s D 59 OT OT supra N , 183d Sess. 1308–11 (Mass. 2004). O . art. XII, § 1. Baker (D also gave rise to a wave of lawsuits, mostly in the North- the in mostly lawsuits, of wave a to rise gave also ONST DOCX . .C OURNAL Appling v. Walker Eskridge, Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407 (Conn. 2008); Morrison v. Sad- 2009–2010, at 240 (2009). J art. XIII, § 13; J. Res. 29, 96th Leg., Reg. Sess. (Wis. 2004); S. J. Res. 30, 97th Leg., Sess. (Wis. 2004); S. J. Res. 30, 97th Leg., art. XIII, § 13; J. Res. 29, 96th Leg., Reg. at 1002 n.34 (Cordy, J., dissenting). at 974 (Spina, J., dissenting). at 990 (Cordy, J., dissenting). IS INAL They produced mixed results. -F 66 OOK . See .Id. .Id. . See .Id. .Id. .See B 65 67. Alaska and Oregon voters enacted DOMAs that overturned early decisions by 64 58 62 59 66 60 61. H. 63. W Goodridge Efforts in the MassachusettsEfforts in the legislature to overturn ANNEY LUE Reg. Sess. (Wis. 2005). and 862,924 against. S vote was 1,264,310 in favor of the amendment DOMA in 2003 and again in 2005. supporters averred that the amendment’ssupporters averred only purpose was to limit the institution of marriageto heterosexual legal rights to gay Wisconsinites,tended to deny other it ratified voters by a 59%-41% margin in late 2006. ler, 821 N.E.2d 15 (Ind. Ct. App. 2005); Shulman v. Attorney Gen., 850 N.E.2d 505 (Mass. App. 2005); Shulman v. Attorney ler, 821 N.E.2d 15 (Ind. Ct. 2006); Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006); Seymour v. Holcomb, 790 N.Y.S.2d 858 (N.Y. App. Div. 2005). lower-level courts in those states holding that their state constitutions mandated marriage or civil unions for gay couples. (Alaska 2001); Brause v. Bureau of Vital Statistics, 1998 WL 88743 (D. Alaska 1998); Revised Limited Judgment, Li v. State, 2004 WL 4963162 (Or. Cir. Ct. 2004), 2005). court followed vided fuel for a new wave of DOMAsvided fuel for a in other states. B 932 procreation, encouraged couples 5R could not last without popular support and, thus, should be achieved be achieved should thus, and, support popular without not last could fiat. process rather than judicial through the political “transform[ing]of into the role individual rights as protector of its role in Massachu- been discerned never before rights” that had creator of setts’s constitution. constitutional amendments must by two be approved consecutive leg- ratified by voters. islatures and then east, seeking judicial declarations of a constitutional right of gay mar- of east, seeking judicial declarations riage. through a constitutional am through a constitutional 39285-mqt_100-3 Sheet No. 135 Side B 06/19/2017 09:53:44 06/19/2017 B No. 135 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 136 Side A 06/19/2017 09:53:44 and 73 , Nov. 4, IMES (2010) fed- T 933 , 671 F.3d 1052 aff’d , N.Y. California gay- 75 Both decisions triggered Both decisions 72 His decision was upheld on lengthy, nationally-publicized 76 A wave to of legal challenges odical opinion concluding that odical opinion concluding that 70 . Perry v. Schwarzenegger expectedly opened theexpectedly opened final, federal but in 2008 a closely-divided Connecti- a closely-divided but in 2008 69 equal-protection and due-process clauses; and due-process clauses; equal-protection Goodridge ) 6/12/17) 1:58 PM Ouster of Iowa Judges Sends Signal to Bench ELETE D The supreme courts of New and Mary- York (2006) OT OT 133 S. Ct. 2652 (2013). N 68 . . art. I, § 7.5 (amended 2008). O , 855 N.E.2d 1; Conaway v. Deane, 932 A.2d 571 (Md., 855 N.E.2d 1; Conaway v. Deane, 932 A.2d 2007). (D , 957 A.2d at 457–60, 482. ONST vacated, MarriageVarnum v. Brien, 763 N.W.2d Cases, 183 P.3d 384 (Cal. 2008); 862 DOCX WISCONSIN LAW IN THE AGE OF INDIVIDUALISM AGE OF THE LAW IN WISCONSIN . .C A.G. Sulzberger, AL but California’s Iowa’s and supreme courts struck down their INAL Goodridge 71 -F 74 . re In .See . Hernandez . Kerrigan 73. C 72 71. Nat’l Pride at Work, Inc. v. Governor, 748 N.W.2d 524 (Mich. 2008); State v. Carswell, 74 68. Lewis 908 A.2d 196 (N.J. 2006). v. Harris, 69 70 75. Strauss v. Horton, 207 P.3d 48 (Cal. 2009). 76. Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010), The backlash in CaliforniaThe backlash in un M K ANNEY C Y (Iowa 2009). 872 N.E.2d 547 (Ohio 2007); Andersen v. King Cty., 138 P.3d 963 (Wash. 2006). phase of the legal debate over gay marriage.phase of the legal debate over gay After California’s supreme state’s newcourt rejected a challenge to the DOMA, in 2010 Iowa ousted three justices who voters voted for gay mar- had riage. eral judge Vaughn Walkereral judge conducted a case and that California’s DOMAopponents had not proven their vio- clause. lated the federal equal-protection trial to determine whether there were facts to support gay-marriage op- ponents’ arguments that limiting marriage to heterosexual couples pro- moted welfare. procreation and children’s After hearing all the evi- dence Walker issued a detailed, meth land (2007) refused by narrow margins to read a right to gay marriageto read a right margins refused by narrow land (2007) state’s constitutions into their marriage advocates turned for the first time to the federal equal-protec- In tion clause and the federal courts. cut Supreme followed Court appeal; the U.S. Supreme Court then vacated it but declined to address the merits, holding only that the gay-marriage opponents who had 2017] mandated clauses process would dissenters three unions; civil fol- have lowed 5R state DOMAs argued that the DOMAs also began in 2006. Challengers and state contravened federal the Washington, Ohio, and Michigan supreme courts rejected such chal- lenges states’ DOMA on their and 2009 respectively, based statutes in 2008 equal-protection clauses. state constitutions’ backlashes: California voters responded by approving a DOMA voters responded by approving California backlashes: 2010, at A1. (9th Cir. 2012), 39285-mqt_100-3 Sheet No. 136 Side A 06/19/2017 09:53:44 06/19/2017 A No. 136 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 136 Side B 06/19/2017 09:53:44 , 83 M K See C Y Appling v. and three states in and three states 200 So. 3d 495 (Ala. 2015). 200 So. 3d 495 (Ala. 2015). 81 , pular attitudes: begin- pular attitudes: [100:923 [100:923 , 766 F.3d 648 (7th Cir. 2014). 86 aff’d . Gay-marriage litigation then 77 See id , 135 S. Ct. at 2611. 2014 WI 96, ¶¶ 22–37, 358 Wis. 2d 132, 853 , 135 S. Ct. at 2607–12. Ala. Policy Instit. , Walker’s a crucial decision played 78 idly-changing po ex rel. See Obergefell State See Obergefell , decided in October, federal judge Barbara decided in October, , ) 6/12/17) 1:58 PM Six in 10 Say Obama Same-Sex Marriage View Won’t Vote Sway twenty-four states in 2014 MARQUETTE LAW REVIEW MARQUETTE ELETE 80 D Ex parte OT OT N O (D Federal courts upheld gay couples’ right to marriage Federal courts in 79 Wolf v. Walker DOCX . Jeffrey M. Jones, DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 1994); Merritt v. Attorney Gen., 2013 WL INAL the New Mexico and New Jersey supremedid the same, courts In , decided in July, Wisconsin’s, decided in July, supreme the state’s court construed (May 11, 2012), http://www.gallup.com/poll/154628/six-say-obama-sex-mar- -F .Id. .See .See The tide of change reached Wisconsin The tide of change in 2014. In 82 85 84 77 78. For a list of the court decisions in question, see Obergefell v. Hodges, 135 S. Ct. 2584, 79 80. Utah, and Ohio. Illinois, 81. Oklahoma, Tennessee, Michigan, Kentucky, Virginia, Texas, Idaho, Oregon, Penn- 85. 2009 Wis. Act 28; Appling v. Walker 82. Nebraska. South Dakota, Alabama, and 86. Wolf Walker, v. 986 F. Supp. 2d 982 (W.D. Wis.), 83. Garden State Equal. v. Dow, 79 A.3d 1036 316 P.3d 865 (N.J. 2013); Griego v. Oliver, 84 In June 2015, the U.S. Supreme legal debate over Court closed the ANNEY . ALLUP Crabb struck down Wisconsin’s DOMA its entirety, concluding that in clause. it violated the federal equal-protection role in the shift but so did rap role in the shift to show polls consistently began ning in 2009 opinion more support to gay marriage,than opposition and in 2012 President Obama formally endorsed it. G three states in 2013, riage-view-won-sway-vote.aspx [https://perma.cc/T83Q-ZT54]. 2015; leaving only a handful of states in whichleaving only a handful gay marriage remained ille- gal. 934 DOMA the to defend as parties joined general attorney California’s after not have standing. to do so did declined 5R 2607–12 (2015). steadily shifted fromsteadily which nearly all of to federal courts, state agreed withJudge Walker the right to marrygay couples had that under the clause. federal equal-protection Walker 2006 DOMA as limited strictly to marriagerefused to overturn a and it law extending marital registered domestic benefits to partners that the a brief period of Democraticlegislature had enacted during control in 2009. Between 2000 and 2015 eleven states also legalized gay marriage through enactment of stat- Between 2000 and 2015 eleven states also legalized gay marriage through enactment utes or constitutional amendments. sylvania, Wisconsin, Indiana, Colorado, Florida, Arizona, Wyoming, North Carolina, Alaska, Kansas, Missouri, WestMontana, Virginia, South Carolina, Arkansas, and Mississippi. id N.W.2d 888. 6044329 (M.D. La. 2013); (N.M. 2013). 39285-mqt_100-3 Sheet No. 136 Side B 06/19/2017 09:53:44 06/19/2017 B No. 136 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 137 Side A 06/19/2017 09:53:44 HOMAS Four ENTURY PON THE . 729, 741. 87 . T Oppo- U EV Cf 91 :AC 935 ONTEMPORARY EST .L.R R IS :C AMBLING HICH G TATES W S , 1998 W ONSTITUTIONS The populist impulse 34 (1868) (“How far the consti- C 90 OVERNING century a wave of constitu- NION U IMITATIONS les and not cluttered with pol- les and not cluttered ,G TATE L to be an organic document,to be an organic one State Constitutional Rights to Keep and Bear :S ELSON OLITICS IN THE N P MERICAN xv, 24–30 (G. Alan Tarr ed., 1996). A arguments should that state constitutions Within of seventeen the space gay years, ICHAEL 88 ONSTITUTIONAL ATTERNS P C &M ) 6/12/17) 1:58 PM -expression through marriage-expression through from had gone ATTLEGROUNDS TATES OF THE B 191, 193–204 (2006) (state constitution amendments expanding . During the late 20th S ELETE ONSTITUTIONAL ASON D 89 OL M OT OT ISTORICAL Models and Fashions in State Constitutionalism N H 44–45 (2001); Eugene Volokh, dissenters. O ODERN (D .L.&P , 135 S. Ct. at 2590. YMAN L EV ., McCulloch v. Maryland, 17 U.S. 316, 415 (1819) (referring to a “constitution EPORT REATISE ON THE OWER OF THE DOCX R WISCONSIN LAW IN THE AGE OF INDIVIDUALISM AGE OF THE LAW IN WISCONSIN . .R P ,T III. M EX . at 2611–26 (Roberts, C.J., dissenting), 2626–40 (Scalia, J., dissenting), 2640–43 . at 2611–26 (Roberts, C.J., dissenting), 2626–40 OHN INAL J Goodridge -F . See, e.g . Obergefell .Id OOLEY , 11 T 89 90. G. Alan Tarr, 91. 87 88 The U.S. Constitution wasThe U.S. Constitution designed M K ANNEY ONTROVERSIES AND EGISLATIVE OUNDATION C Y intended to endure for ages to come, and, consequently, to be adapted to the various crises intended to endure for ages to come, and, of human affairs”); C (Alito, J., dissenting). the right to bear arms). the right to bear arms). dissenting justices sounded, with justices sounded, dissenting the of sharpness, varying degrees theme to democratically-elected of deference legislatures first sounded by the confined to general governmentalconfined to general princip icy details. Despite occasional emulate been stuffed with that goal, they have social policy provisions and have regularly been amended as social and political tides have shifted in the states. tution of a State shall descend into the particulars of government is a question of policy ad- tution of a State shall descend into the particulars of government is a question of policy dressed to the convention which forms it.”). was closely connected to expressive individualism, a connection most directly expressed in amendments guaranteeing and expanding the and gambling.right to bear arms, to hunt and fish, the right M. C L F C 2017] marriagegay when that marriagea 5-4 vote held by it wasa fundamen- federal Constitution, protected by the tal liberty one closely associated with and of association rights of freedom constitutional and of privacy, of sexual orientation. regardless extended to all couples one that 5R Arms nents of expressive individualism also made through their voices heard tional populism led to passage of amendments designed to rein in gov- ernments as “overly expensive and powerful perceived . . . insulated from and popular control.” popular concerns Americans’ of self right to the law of the land. universal rejection 39285-mqt_100-3 Sheet No. 137 Side A 06/19/2017 09:53:44 06/19/2017 A No. 137 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 137 Side B 06/19/2017 09:53:44 M K OF ,4 . . 57, C Y EV OC see also (Eng.) .S .L.R IST EALM H R OLLECTIONS ENN note 93, at 60–66; The Game is Afoot: TATE S , 77 T supra Many states that THE 97 . of 1777, ch. I, § 15; ] [100:923 [100:923 TATUTES OF THE ERIES ONST tions providing that citi- S .C T since colonial times. Hunting 92 Hunting was and fishing of a less 95 ions, but few included hunting-and- ions, Pennsylvania and Vermont inserted State Constitutions and the Right to Keep and Bear State Constitutions and the Right to Keep and Fish early 19th century included right-to- ONSTITUTIONAL 96 ,2C A few states worded their right-to-bear- 99 . 2105 (2013). State Constitutional Amendments and Individual Rights in the State Constitutional Amendments and Individual EV note 93, at 181–82. note 93, at 67–69. ) 6/12/17) 1:58 PM 1846 (Milo M. Quaife ed., 1918); [29 C . 177, 180–83 (1982); Jeffrey Omar Usman, .L.R MARQUETTE LAW REVIEW MARQUETTE EV ELETE supra supra OLLECTIONS LB D note 91, at 206–17. OT OT note 93, at 180–81. N Neithercame subject up at Wisconsin’s constitutional [27 C supra John Dinan, U. L. R O , 76 A 98 The Act was English populace deeply resented by the . of 1776, Decl. of Rights, clause XIII; V (D supra 94 ITY The Crown made effort to restrict those rights no serious 93 .C ONST DOCX ONVENTION OF . C Volokh, .C note 91. at 182; Usman, An Act for the Better Preservation of the Game, and for Secureing WarrensAn Act for the Better Preservation of the not KLA A INAL -F HE . See generally .See .Id. . . See generally supra , 7 O 99 98 95. Dowlut & Knoop, 96 97. P 94 92 93. Robert Dowlut & Janet A. Knoop, The view weapons of personal as an emblem has been of liberty ., T ANNEY IS A. Constitutionalism: Expressive Arms The Right to Bear and to Hunt and Inclosed, and the Severall Fishings of this Realme (1671) 5 S Realme (1671) 5 Inclosed, and the Severall Fishings of this view arms restrictions as part of an effort to impose tyranny by elimi- by tyranny impose to effort an of part as and by American colonists who, approached, came as the Revolution to restrictions arms view nating the means of self-protection. Arms http://www.british-history.ac.uk/statutes-realm/vol5/pp745-746 [https://perma.cc/7CNF-8MS8] (last visited Apr. 24, 2017); Usman, Dowlut & Knoop, bear-arms clauses in their constitut fishing clauses. came during the into the Union until Charles II induced Parliamentuntil Charles II induced to pass the Game Act (1671) which the numberdrastically reduced of commoners permitted to hunt on Crown lands. Sayres v. Commonwealth, 88 Pa. 291 (Pa. 1879); State v. Rosenthal, 55 A. 610 (Vt. 1903); Vo- Sayres v. Commonwealth, 88 Pa. 291 (Pa. 1879); State v. Rosenthal, 55 A. 610 (Vt. 1903); lokh, W 936 amendments, most DOMA notably amendments and amendments giv- official status. language ing the English 5R Constitutionalizing the Right to Hunt and Fish in the Tennessee Constitution Constitutionalizing the Right to Hunt and Fish conventions (1846, 1847–48). 63–65 (2009). provisions in their Revolutionary-era constitu provisions in their Revolutionary-era zens had a right to bear arms and to hunt and fish. Twenty-First Century deeply imbedded in American culture basic rights by all Eng- for hunting were considered and use of weapons lish classes. sore subject because the Crown and colonial proprietors had liberally extended such rights to colonists. 39285-mqt_100-3 Sheet No. 137 Side B 06/19/2017 09:53:44 06/19/2017 B No. 137 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 138 Side A 06/19/2017 09:53:44 . see EV supra . art. II, .L.R note 91. Y . art. I, § 1 TATEHOOD . art. I, § 13 . art. I, § 22 S ONST Between supra 100 937 102 ONST ONST ONST , 29 N. K .C .C .C A EB LL Volokh, . L. 1449, 1497–99 (2012); J. TTAINMENT OF RB including Wisconsin A U 103 HE see generally ., T IS ., Act of June 19, 1968, Pub. L. No. 90– . art. I, § 25 (1998). . art. I, § 6 (1984); V . I art. I § 20 (1987); ORDHAM . pt. 1, art 2-a (1982); N.M. C W These developments a elicited . art. I, § 11 (1987); N 101 OF ONST ONST . ONST ONST , 39 F C State v. Knight, 218 P.3d 1177 (Kan. Ct. App. State v. Knight, 218 P.3d 1177 (Kan. Ct. App. .C OC .C ONST IS see also, e.g ld, a Wisconsin Democrat sympathetic d prohibited or drastically limitedd prohibited or drastically pos- EL .S TAH .C E IST see also H note 93, at 207 n.123; The (New) New Judicial Federalism: State Constitutions and The (New) New Judicial Federalism: State Constitutions . art. I, § 25 (amended 1998) (providing that: “The people A Tale of Three Cities: The Right to Bear Arms in State Supreme to Bear Arms in State Supreme A Tale of Three Cities: The Right ) 6/12/17) 1:58 PM TATE supra S ONST ELETE J. Res. 27, 92d Leg., Reg. Sess. (Wis. 1996); J. Res. 21, 93d Leg., Reg. .C THE . D . 1177 (1995); IS ] note 93, at 184–91; OT OT EV . art. I, § 1 (1984); U W N . art. I, § 27 (1994); D . art. III, § 11 (1986); W ., art. I, § 16 (amended 1987); State v. Friel, 508 A.2d 123 (Me.., art. I, § 16 (amended 1987); State v. Friel, 1986); O ERIES . art. I, § 11(1) (1982); N.H. C See also L. R supra See (D . art. I, § 11 (1974); M S ONST ONST What State Constitutions Teach About the Second Amendment ONST ONST .C ONST DOCX WISCONSIN LAW IN THE AGE OF INDIVIDUALISM AGE OF THE LAW IN WISCONSIN .C . .C ONST Michael B. de Leeuw, Dowlut & Knoop, A E EMPLE LA .C Support for such amendments cut across traditional political V .C INAL EV A 104 -F .See .See , 68 T 104. The states were: Illinois (1970), New Mexico and Virginia (1971), New Hampshire 102. M 101 100 103. A Following in 1963, John F. Kennedy of President the assassination M K ANNEY ONSTITUTIONAL C Y 351, 82 Stat. 228; Act of Oct. 22, 1968, Pub. L.351, 82 Stat. 228; Act of Oct. 22, 1968, Pub. No. 90–618, 82 Stat. 1234; Act of May 19, 1986, Pub. L. No. 99–308, 100 Stat. 451; Act of Aug. 28, 1986, Pub. L. No. 99–408, 100 Stat. 920. the Protection of the Individual Right to Bear Arms the Protection of the Individual Right to Bear strong backlash including a newstrong backlash wave of right-to-bear-arms amend- ments: for example, Maine’s after supreme court suggested that the right to bear arms wascollective only, Maine promptly voters enacted an amendment affirming bear arms. right to an individual Dowlut & Knoop, (1970); L 1970 and 1998 thirteen other states did also, 1970 and 1998 § 6 (1971); N.D. C lines: U.S. Senator Russell Feingo C 2017] arms make to provisions was the right clear that not limited collective to (for example,use of arms as part of militia of the state in defense service) withcourts in states extended to self-defense; individual and but was ambiguous clauses almost uniformly took the same position. 5R gun-control advocates gained a prominentgun-control advocates on the American place polit- about increasingical stage. Concerns urban violence and crime prompted Congress to enact laws purchase and use of fire- regulating arms; some cities went further an session of firearms withinlimits. their Sess. (Wis. 1998). have the right to keep and bear arms for security, defense, hunting, recreation or any other have the right to keep and bear arms for security, defense, hunting, recreation or lawful purpose”). and Nevada (1982), Louisiana, North Dakota, and Utah (1984), West Virginia (1986), Maine and Delaware (1987), Nebraska (1988), Alabama (1994), and Wisconsin (1998). Volokh, note 91, 193–204. David B. Kopel, (1988); N (1971); W. 827 (2002); David B. Kopel et al., Courts (1998). 2009); Commonwealth v. Davis, 343 N.E.2d 847 (Mass. 1976). (Milo M. Quaife ed., 1928) 39285-mqt_100-3 Sheet No. 138 Side A 06/19/2017 09:53:44 06/19/2017 A No. 138 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 138 Side B 06/19/2017 09:53:44 , M K 106 109 C Y , Sept. 24, IMES See also State Con- , www.ncsl.org/re- (Wis.) J.-T [100:923 [100:923 ACINE 111 ental to liberty continue ental to liberty EGISLATURES , R L supported his state’s amend- state’s his supported Obama to Expand Gun Background Checks TATE 105 S s to elicit calls for increased reg- calls for increased s to elicit rds and animals in other states. Id. OF . 108 ONF C L ’ AT (Jan. 4, 2016), www.nytimes.com/2016/01/05/us/poli- shing as basic rights. As a result, between 1996 and 2015 eighteen ,N ) 6/12/17) 1:58 PM 110 IMES Feingold Backs Gun Amendment MARQUETTE LAW REVIEW MARQUETTE Russ Feingold Wants to Lead a New Progressive Era in the Senate ELETE D OT OT , N.Y. T note 93, at 77–80. Trapping bans were enacted in California, Arizona, note 93, at 77–80. Trapping bans were enacted N O B. Expressive Constitutionalism: Gambling Constitutionalism: B. Expressive (D Michael D. Shear & Eric Lichtblau, supra ., . art. I, § 26 (providing that: “The people have the right to fish, hunt, trap, and DOCX John Nichols, . Gun-related violence continue ONST INAL , (Sept. 8, 2016), https://www.thenation.com/article/russ-feingold-wants-to-lead-a- -F .Id. . See, e.g . See .C 107 IS 110 111. Res. 16, 95th Leg., Reg. Sess. (Wis. J. 2001); J. Res. 8, 96th Leg., Reg. Sess. (Wis. 2003). 106. A. Scolaro, Joseph 107. McDonald v. Heller, v. City of Chicago, 561 U.S. 742 (2010); District of Columbia 108 109. Usman, 105 American gambling law has had a long and shifting history. Old- After 1970, efforts to eliminateAfter 1970, efforts altogether certain types of hunting W ANNEY ATION See and Tighten Enforcement Colorado, Washington New Jersey prohibited bear hunting and Massachusetts (1994–2001); (2010). (2008) and Iowa prohibited dove hunting ment what necessary to protect as he viewed right. an essential civil as stock pietistic Protestants viewed gambling and discouraged as sinful states including Wisconsin (2003) added clauses to their constitutions establishing hunting and fi search/environment-and-natural-resources/state-constitutional-right-to-hunt-and- fish.aspx#5 (last visited Apr. 24, 2017). new-progressive-era-in-the-senate/ [https://perma.cc/6KTK-KY65]. Traditional conservationists, already concerned about the shrinking of already concerned Traditional conservationists, such measures viewed places due to urbanization, hunting and fishing as a direct infringement of addi- of personal liberty and as a harbinger tional bans in the future. 938 to government in many regulation areas, SupremeA 2010 that the held in 2008 and Court U.S. closely-divided Second Amendmentfederal right to bear an individual also created arms. 5R take game subject only to reasonable restrictions as prescribed by law.”). take game subject only to reasonable restrictions as prescribed by law.”). ulation and those whoulation and those fundam view guns as their vigil against their vigil against such regulation. stitutional Right to Hunt and Fish tics/obama-says-he-will-act-on-gun-control-in-coming-days.html?_v=0. tics/obama-says-he-will-act-on-gun-control-in-coming-days.html?_v=0. 1998. 554 U.S. 570 (2008). N appeared for the first time.appeared for the Manymodern focused on conservationists animal and at hunting; between 1970 protection and looked askance laws2000 they secured in several western banning all trapping states certain types of bi and bans on hunting 39285-mqt_100-3 Sheet No. 138 Side B 06/19/2017 09:53:44 06/19/2017 B No. 138 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 139 Side A 06/19/2017 09:53:44 , see , 1848– OUGLASS New New 119 939 The pattern XPERIENCE E note 91, at 8–9; 116 As a result, many supra 118 , ISCONSIN note 91, at 8–10; D W By then, traditional dis- By then, traditional ELSON HE 117 supra , :T &N AW sed their proceeds for pious or pious for their proceeds sed L The lottery amendments were ELSON The fortune-seeking urge sharp- The fortune-seeking ASON her forms of gambling. 120 115 &N note 114, at 61–68. ASON supra , Gambling to the urge never disappeared: Gambling and the Law: The Wisconsin Experience, 1848–1980 note 91, at 8–9. note 91, at 9–16. note 91, at 7–8. 114 ) 6/12/17) 1:58 PM AMBLING AND THE supra supra supra ARNSLEY ,G , , , note 19, at 67–69. ELETE note 114, at 61–72; M D 121 OT OT supra N ELSON ELSON ELSON .§ 24; M art. IV, , supra O ARNSLEY , F (D &N &N &N ONST . 811, 856–59. Many union, including entered the that subsequently states EV DOCX .C WISCONSIN LAW IN THE AGE OF INDIVIDUALISM AGE OF THE LAW IN WISCONSIN . at 9–12. at 9–10. at 8–13, 15–18; F at 8. IS ASON ASON ASON ATTERSON ARNSLEY 113 LLERBE E INAL .L.R -F .Id. .Id. .Id. .Id. IS Lotteries were Lotteries u if they tolerated 117. P 119 120 121 112. M 115. F 118. M 116. M 114. W 113 Wisconsin’s was experience Starting in the early 1970s vot- typical. M K 112 ANNEY HARLES C Y Wisconsin, followed suit. accompanied by a steady stream of amendments authorizing other forms of gambling. approval of gambling had largely been replaced by an individualist view of gambling as merely another lifestyle choice. states replaced their 19th-century anti-lottery clauses withstates replaced their 19th-century clauses ex- ot plicitly authorizing lotteries and socially worthysocially the 1830s, following causes but in a rash of corruption amendments constitutional several states enacted scandals, prohibiting lotteries. repeated itself in the late 20th century, this timerepeated itself in with a distinct stamp of expressive individualism. in many Starting in the late 1970s voters states complained tax reductions, thus cre- of rising taxation and forced for newating an acute need revenue sources. Hampshire (1964) and New York (1967) were states to enact lot- the first tery amendments; twelve followed states suit in the 1970s, seventeen in the 1980s, and six more in the 1990s ened during the Depression,ened during the states’ as did for new searches of sources the 1930s manyrevenue, and during and states legalized horse racing pari-mutuelhope of meeting betting in the both needs. risk small amounts the hope of great fortune remained in and strong, most law enforcement the other way officials looked if gambling was on a smalldone discreetly and scale. C 2017] it. 5R Douglass Charles Ellerbe Farnsley, ers repeatedly amended the state’s constitution, first to allow bingo for 1980, at (1980) (unpublished LL.M. 58–59 thesis, University of Wisconsin). 1980 W 39285-mqt_100-3 Sheet No. 139 Side A 06/19/2017 09:53:44 06/19/2017 A No. 139 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 139 Side B 06/19/2017 09:53:44 M K HE 128 C Y Knight v. . art. XII, § 1 Obergefell Voters then Compare 124 ONST , LRB-00-RB-1, T .C IS During the course course the During 131 125 UREAU B [100:923 [100:923 constitutional ban on lotter- constitutional and then to allow then to and charitable EFERENCE (2000). 122 tory construction, together with .R EGIS ISCONSIN .L W IS Amendments W Some DOMAs were worded to bar only 126 State courts, including Wisconsin’s supreme case, generally refused expansive interpreta- case, generally refused expansive ) 6/12/17) 1:58 PM 129 Prior to the Supreme Court’s 2015 2014 WI 96, ¶¶ 22–37, 358 Wis. 2d 132, 853 N.W.2d 888. , MARQUETTE LAW REVIEW MARQUETTE AMBLING IN dual expression to near-universal social and legal to near-universal social and legal dual expression 127 ELETE TATE OF G D ,S OT OT Appling N O Initial efforts to repeal the to repeal Initial efforts note 44 and accompanying text. notes 45–47 and accompanying text. (D . art. IV, § 24 (amended 1987). ¶¶ 22–37 (interpreting Wisconsin’s DOMA, W ITSCHE 123 EGALIZED R L note 131. DOCX . ONST . art. IV, § 24 (amended 1973). . art. IV, § 24 (amended 1977). AN .C INAL Traditional principles of statu IS -F .D . Appling, . See supra . See supra .Infra ONST ONST 130 C. Conservative Constitutionalism: DOMAs and English-Language 125. Res. 35-36, 87th Leg., Reg. Sess. (Wis. J. J. Res. 3-4, 88th Leg., Reg. Sess. (Wis. 1986); 122. Res. 31, 80th Leg., Reg. Sess. (Wis. J. 1971); J. Res. 6, 81st Leg., Reg. Sess. (Wis. 1973); 124 123. Res. 19, 82d Leg., Reg. Sess. (Wis. J. 1976); J. Res. 6, 83d Leg., Reg. Sess. (Wis. 1977); 131 126 127 128. Obergefell v. Hodges, 135 S. Ct. 2584 (2015). 129 130. Appling v. Walker Constitutional amendments expressive in- have been used to check .C .C ANNEY IS IS VOLUTION OF dividualism as well it. The wave as to serve of DOMAs enacted between a firewall1998 and 2006 as against gay marriage, is the discussed above, most prominent example. marriage, some unions, and others explicitly barred marriage and civil with any rights associated mar-prohibited legislatures from conferring riage on gay couples. (amended 2006), which provided that “a legal status identical or substantially similar to that of marriage” would not be recognized for gay and unmarried couples). the fact that during some ratification campaigns, including Wisconsin’s, DOMA their DOMAs advocates had told voters that would apply to marriage only, made the decisions relatively easy. E decision, disputes arose in several states withdecision, disputes arose in several limited DOMAs whether such DOMAs expansively to deny gay citizens all should be interpreted marriage-related rights. 940 (1973) purposes fundraising charitable 5R court in the 2014 tion. 1987); W authorized a state lottery and pari-mutuel a state lottery authorized betting. raffles (1977). W ies failed but lottery supporters finally prevailed in 1987. finally prevailed but lottery supporters ies failed W of three decades, gamblingof three went from a morally and legally pro- suspect hibited form of indivi acceptance. 39285-mqt_100-3 Sheet No. 139 Side B 06/19/2017 09:53:44 06/19/2017 B No. 139 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 140 Side A 06/19/2017 09:53:44 , . , IS AR OLK W The : 2011, , 2 W ATIVISM 138 As in in As G. V IVIL N C 135 TATES YLE S HE 941 NITED MERICAN . II: T U A OL ght to be dead, but ght to be V 30–95 (2014). . 669, 671–72 (2008). 99–128 (1976); K courts in several states, states, in several courts EV SE IN THE U ATTERNS OF ISCONSIN .L.R The Bennett Law in Wisconsin W :P EMOCRACY AN MERICANS D AND -A L ANGUAGE , 57 K diversity, particularly use of their diversity, particularly use of their many Americans viewed the new ,L note 2, at 828–33. force cultural assimilationforce cultural by prohib- ISTORY OF 136 ERMAN MERICAN H G such laws were thou A supra UREAU , HE B HE 133 Watch Your Language! The Kansas Law Review Survey of ,T ,T ENSUS ) 6/12/17) 1:58 PM AKING OF note 19, at 26–28, 292–303. TRANGERS IN THE IPPLEY HLSTROM M URRENT Why English Should Be the Official Language of the United States? ,S ELETE . 460/20 (1969). J. R D supra 137 ,U.S.C , N. C TAT OT OT . (last visited (2013), www.census.gov/prod/2013pubs/acs-22.pdg ERN N IGHAM .S V EP YAN O H Josh Hill et al., R A (D Nat’l Pride at Work, Inc. v. Governor, 524 (Mich. 748 N.W.2d 2008) (hold- .R , www.proenglish.org/official-english/why-official-english.html (last vis- OMP See Meyer v. Nebraska ICHARD ATTERSON OHN .C with DOCX WISCONSIN LAW IN THE AGE OF INDIVIDUALISM AGE OF THE LAW IN WISCONSIN . 3, Sept. 1918; A URV . ORG After U.S. the Supreme struck down Court several English- R P K.C. McAlpin, J . LL AMILLE I IST .S 132 INORITIES AND THE America’s Hispanic grew population dramatically, increasing INAL H -F .See .See .See .See M case), 134 MTY , 1848–1873, at 548–49 (1976); Louise P. Kellogg, OF NGLISH . 132 135. C 138. 5 137 133. 390 (1923). 262 U.S. 134 136 During 20th centuries early 19th and the late Illinois enacted the first modern English-only statute in 1969. E M K .C ANNEY ORAL AG M EARS RO C Y ing that Michigan’s Mich. Const. art. I, § 25 (amended 2004), which provided that DOMA, agreement[s] recognized as a marriage or similar heterosexual marriages “shall be the only partnership benefits for members of gay cou- union for any purpose,” precluded domestic ples). immigrants’ expressions of cultural in everyday life, as a threat to the native languages rather than English nation’s well-being. Apr. 24, 2017). Official-English and English-Only Laws and Politics Official-English and English-Only Laws and only laws in including Wisconsin,including attempted to iting the use of all languages except English for classroom except English use of all languages iting the instruction in schools. A 1860–1925 (1963); L Superior Court, 26 Cal. Rptr. 3d 687 (Cal. Ct. App.Superior Court, 26 Cal. Rptr. 3d 687 (Cal. Ct. 2005) (including a discussion similar to the Appling Y M M 2017] 5R P ited Apr. 24, 2017) (characterizing increase in non-English-speaking population as “ominous[ ited Apr. 24, 2017) (characterizing increase in non-English-speaking population as “ominous[ from the ] for the nation’s linguistic unity” and criticizing the late-20th-century shift away melting-pot ideal toward multiculturalism). in the late 1960s they began to surface once again in response to a new they began to surface once again in the late 1960s wave of immigration relaxed immigration that began after Congress changing worldconstraints and a economic picture increased incentives for Hispanic migrantsUnited to enter the ille- States both legally and gally. earlier eras of heavy immigration,earlier eras of heavy from 3.2%to 6.4% of the total population (1960) (1980) and to 16.3% in 2010. The number of American residents with a primary other language in 2010, about 21%Spanish also rose: than English or of all American their homes.a language other than English in residents spoke 39285-mqt_100-3 Sheet No. 140 Side A 06/19/2017 09:53:44 06/19/2017 A No. 140 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 140 Side B 06/19/2017 09:53:44 . M K RIZ C Y See id. ANGUAGE , L note 137 (ar- See id. Both states’ supra 146 A handful of states A handful of states A steady stream of 197, 197–99 (2012) (arguing 142 [100:923 [100:923 Y 139 ’ OL limits laws, in those usually angleg.htm [https://perma.cc/GJY5- L. & P note 135, at 673–74. conducted in English and speci- in English and conducted supra ENDER See Language Legislation in the U.S.A. ¿Only English? How Bilingual Education Can Miti- J. G UKE and eight in the 2000s. and eight in the 144 . ) 6/12/17) 1:58 PM 141 , 20 D note 135, at 681–83. MARQUETTE LAW REVIEW MARQUETTE ELETE D Meyer OT OT supra . art. XV, § 4 (amended 1978); Act effective May. art. XV, § 4 (amended 1978); Act effective 22, 1979, S.B. No. 45, Since 1995, however, legislatures enacting nearly all N O 143 notes 133–34, 138–42; Hill, (D ONST , Hill, ., Jennifer Bonilla Moreno, The two and Arizona, sides joined battle in Alaska whose .C DOCX 145 . AW six in the 1990s, INAL -F . See, e.g. . See supra . See, e.g 140 , http://www.languagepolicy.net/archives/l Y 140. Virginia (1981, statute with specific limits); symbolic Indiana and Kentucky (1984, 139. H 146. employees “act” only in English. A Arizona law required that government 141. Alabama legislation); Montana, (1990, authorizing appropriate New Hampshire 142. Utah (2006, symbolic); Idaho and (2000, specific limits); Iowa (2002, same); Arizona 143 144 145 Opponents have not challenged the laws’ central premiseOpponents have not challenged that as- ’ ANNEY OL laws were among the most English-only laws. draconian including Wisconsin the tide. Most have resisted early measures fol- lowed symbolic Illinois’ model; a few contained vaguely-worded implement- state legislatures to enact “appropriate” clauses authorizing ing legislation. 1979 Haw. Sess. Laws 189. California (1986, constitutional amendment au- statutes); Tennessee (1984, specific limits); (1986, specific limits); Arkansas, Mississippi,thorizing appropriate legislation); Georgia Carolina (1987, symbolic); Colorado and Florida North Carolina, North Dakota, and South (1988, authorizing appropriate legislation). English-only laws followed: enacted such measures thirteen states in the 1980s, guing that adoption of a universal language is necessary to national greatness and that Eng- guing that adoption of a universal language is necessary to national greatness and helped lish-only laws, particularly those that prohibit bilingual instruction in schools, have recent immigrants by forcing them to assimilate more quickly). against the English-only laws that apply to school instruction); McAlpin, against the English-only laws that apply to school instruction); McAlpin, 43JM] and statutes linked thereto. (last visited Apr. 24, 2017), P 942 wasstatute little more endorsement a symbolic than assimilation: of it language without state’s official English as the designated more. in But 1978 HawaiiEnglish-only laws the first enacted with specific limits: it that governmentrequired business be governmentfied that officials were provide no obligation to under foreign-language translations. Spanish or other 5R similation the laws has value; instead, they have argued that discrimi- and hampernate against non-English speakers rather than promote as- similation. and South Dakota (1995, specific limits); Wyoming (1996, same); Alaska (1998, same). English-only laws have inserted specific limited of government to the conduct business but in some cases requir- be in English notwithstandinging that school instruction the Supreme Court’s holding in Kansas (2007, specific limits); Missouri (2008, same); Oklahoma (2010, same). gate the Damage of English-Only 39285-mqt_100-3 Sheet No. 140 Side B 06/19/2017 09:53:44 06/19/2017 B No. 140 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 141 Side A 06/19/2017 09:53:44 , : , 151 148 EARS (2015); 149 Y ULDER ROUND TLANTA G note 135, :A ING T. M 1–18, 27–28, K 943 supra note 19, at 388– ARK LIGHT EPARTURE Initiative Petition F OMMON . §§ 44.12.300–.398 D ,C Hill, supra , In re TAT HITE DUCATIONAL DUCATIONAL DUCATION see S E E RBAN UKAS ,W (1985); M L U MERICA IN THE RUSE LASKA :A ATTERSON K AMILIES OARD OF F NTHONY .B ECLINE OF ATERS ICHAEL D W M . §§ 44.12.300–.398 (2016). HE . art. XXX, §1 (2010); ROWN V MERICAN guage is a legitimateguage is governmental B A that school segregation was that school segregation uncon- sion remainedstubbornly elusive. TAT (2005); J. A EVIN :T education manifested themselves in S ONGREGATIONS AND 150 ONST C HREE To do so, said Arizona To do so, said justice James .C ARTING THE T 147 LASKA SSIMILATIONISM ,P KLA A (1954) stitutional right to petition government.stitutional right ) 6/12/17) 1:58 PM ONSERVATISM IVES OF MPLEMENTING C L :I RANCH VANGELICAL B ELETE :E D ATTLEGROUNDS PEED OT OT S B ODERN . art. XXVIII; A N M O AYLOR LIGHT F (D ONST ., T ECADE IN THE .C D HITE DOCX WISCONSIN LAW IN THE AGE OF INDIVIDUALISM AGE OF THE LAW IN WISCONSIN ODERN . ELIBERATE W RIZ AKING OF D INAL M -F . See, e.g LL . art. XXVIII. Alaska law required that English be used in all government transactions . art. XXVIII. Alaska law required that English A IV. M 148. Ruiz v. Hull, 957 P.2d 984, 987 (Ariz. 1998). 149. Alaskans v. Kritz, 170 P.3d 183, 187 (Alaska 2007). In for a Common Language, Inc. 150. 483 (1954). 347 U.S. 151 147. A During the years following U.S. the Supreme Court’s decision in URBULENT M K ANNEY ITH ONST HADES OF C Y 95, 477–81. AND THE Brown v. Board of Education and that government records be maintained in English. A and that government records be maintained Moeller, cut[] off governmental would “effectively communication” with residents who have no English or limited and would English vio- of the laws. of free speech and equal protection late their rights C 1954–1963, at 222–24, 633–72, 821–23 (1988); K AT S Alaska’s supreme court also held that violate such restrictions would con non-English speakers’ During the ensuing decades, the rise of expressive individualism and the decline of assimilationism in 2017] supreme laws, to the deference gave cautious courts emphasizing that promotion of a common English lan government courts held that goal; both communi- no obligation to has cate with but that gov- native language speakers in their non-English ernment employees who English may other than speak languages not be barred from using them. 5R 44–58 (Brian J. Daugherity & Charles C. Bolton eds., 2008); P No. 366, 46 P.3d 123 (Okla. 2002); O 2002, Oklahoma’s supreme court gave an advisory opinion that a similar prohibition in that 2002, Oklahoma’s supreme court gave an proposed amendment unconstitutional. The was state’s proposed English-only amendment in a revised form that did not prohibit govern- was withdrawn but was eventually adopted other than English. ment officials from communicating in languages at 684–87. W (2016). stitutional, the assimilationist to have vision of public schools appeared reached its zenith: black Americans, it was thought, would now be able meltingto partake fully of the educational opportunities it pot and the held. But implementation of that vi 39285-mqt_100-3 Sheet No. 141 Side A 06/19/2017 09:53:44 06/19/2017 A No. 141 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 141 Side B 06/19/2017 09:53:44 , , LL M K 155 153 A C Y OLICY HANGE P ITH C AKING OF The Consti- M NALYSIS OF , 406 U.S. 205 A HE N note 151, at 221– AW AND :T aff’d L :A supra , with the difficulties ONTINUITY AND ILWAUKEE :C [100:923 [100:923 M DUCATION DUCATION E E DUCATION After more than a decade LACK E James B. Egle, Comment, 157 ISCONSIN eighth grade (by whicheighth grade time, ., B was paramount;the U.S. Su- R W . 459, 459–61. see J educational assimilationism. EV sending pupils to neighborhood sending pupils to neighborhood QUALITY IN OARD OF expressive individualism in Amer- have the skills necessary to lead the have the skills necessary compulsory education did not con- ,E PPROACH TO .B .L.R ROTTER A IS T ISTORY OF Wisconsin one of the leading provided ,H 34–35 (2000); 152 ROWN V UPERFINE ARKET B S ILLIAM , 1992 W M (1971) Amish whose parents, beliefs religious vidualism and frustration W ) 6/12/17) 1:58 PM , 1915–1945, at 30–32, 186–97, 215–20 (1985); W HE OE ROGRAM HOMPSON MARQUETTE LAW REVIEW MARQUETTE P ELETE ICHAEL 154 ,T D F. T M OT OT N ITTE 156 O MPLEMENTING OUCHER ROLETARIAT note 14 and accompanying text. (D :I ILLIAM P V State v. Yoder F. W W ENJAMIN DOCX PEED . 6 B IRST S F OHN S INAL ’ -F .See .Id. . See supra .See NDUSTRIAL 157 154 155 156. J 152 153. State v. Yoder, 49 Wis. 430, 434, 182 N.W.2d 2d 539, 540 (1971), The school voucher movementThe school voucher most has been the important and Critical mass was first reached in Wisconsin. 1960s, res- In the early I ANNEY MERICA ELIBERATE of political and legal efforts by the Milwaukeeof political and legal efforts by the branch of the NAACP to most controversial manifestation of ican education law. Voucher systems directly promote educational in- dividualism and represent an implicit case of supporters such (or in the as Justice Ceci, explicit) rejection of an A D of school integration to create the critical mass critical of school integration to create the necessary for vouchers’ political success. 1954–2010, at 199–200 (2013). (1972). 1940–1965, at 323–26 (1988); J Libertarian economist Milton Friedman first proposed vouchers in the 1950s as a way market of extending the free to education but it took sev- eral decades of rising indi 944 ways.several number increasing First, an Americans of came to view as a mattereducation choice, and the and personal of customization that trend. courts supported The state’s supreme court held that stitute a compelling parental right of control, that the state interest and at least in matters implicating religion, preme Court agreed. 5R 22. examples: in schools created severe school segregation. idential segregation was firmly entrenched in Milwaukee as a re- and sult, MPS’s long-standing policy of called for terminationcalled for of schooling after children wouldthey believed, their simplecalled for), challenged attempts life that their faith to enforce against them a Wisconsin law to age sixteen. requiring attendance AN tutional Implications of School Choice 39285-mqt_100-3 Sheet No. 141 Side B 06/19/2017 09:53:44 06/19/2017 B No. 141 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 142 Side A 06/19/2017 09:53:44 163 CHOOL S J., May 22, “The Con- 945 DUCATION FOR 159 E MPACT OF ,I Amos of v. Board Judges Say Racial Ten- ILWAUKEE white flight from the plaintiffs and the plaintiffs , M IGHTS R UALITY Q IVIL C Armstrong v. Brennan, 539 F.2d 625 that MPS’s violated policies ON . 158 illiams, to create a separate mi- OMM CHOOLS ON S (1976) U.S. C aff’d sub nom. UBLIC P breaking up the neighborhood school sys- up the neighborhood breaking ion rights, and he ordered and ion rights, EPORT TO ) 6/12/17) 1:58 PM ., R 2–5, 22–25 (1992); Lawrence Sussman, As opponents had predicted, predicted, As opponents had ELETE 160 Many wavering lawmakers supported the pro- OMM ATER D L ILWAUKEE C note 156, at 43–44. , 433 U.S. 672 (1977). 162 OT OT M note 156, at 43–44. N O EARS supra (D , supra DVISORY , remanded ITTE DOCX .A WISCONSIN LAW IN THE AGE OF INDIVIDUALISM AGE OF THE LAW IN WISCONSIN . 161 at 821. ITTE IS . . . 15 Y Even in its modest form the law represented a breakthrough; INAL -F .Id. .Id. 164 162. 1989 Wis. Act 366 § 228. 163. W 164. 1989 Wis. Act 366 § 228. 158. 408 F. Supp. 765 (E.D. Wis. 1976), 159 160 161. W When a proposal by black leaders, including educator Howard M K ANNEY INORITIES ESEGREGATION IN C Y 175% income, of federal poverty-level and made parochial schools inel- igible. black pupils’ equal-protect black pupils’ MPS a remedial to develop took a firmly plan. Reynolds assimilationist that protests view, rejecting tem would to white only lead and more flight segregation. Milwaukee to integrate MPS: to its suburbs frustrated all efforts by the efforts werelate 1980s, those widely Black MPS judged a failure. stu- those of whiteto lag badly behind dents’ achievement levels continued conflicts in MPSstudents, racial schools were and anti-as- increasing, similation voices arose within Milwaukee’s black community for the first time. sion May Be Rising—They Ask Schools to Help Foster Understanding 1990, at B1; W gram only after Thompson Williams and assured them that it was a tem- porary experiment intended to help close the racial achievementgap, D M and they made the 1990 program a modestwas one: it limited to 1% of MPS’s student population, limited eligibility to families earning up to 2017] in held Reynolds John judge federal segregation, end School Directors of City of Milwaukee 5R stitution does not guarantee one a quality education,” he reasoned; “it guarantee one a quality education,” stitution does not equal education, andguarantees one an the law a in this country is that systemsegregated education that is mandated authorities is by school inherently unequal.” (7th Cir. 1976), Fuller and state representative Polly W Fuller and state representative Polly nority-oriented school district failed they made common cause with Governor Tommy Thompson MPS’s and Catholic leaders who saw in troubles a newsupport of private schools, and in opening for public 1990, Wisconsin’s narrowly approved the nation’s first legislature voucher program. 39285-mqt_100-3 Sheet No. 142 Side A 06/19/2017 09:53:44 06/19/2017 A No. 142 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 142 Side B 06/19/2017 09:53:44 M K : It C Y Yoder In the same year, (1998) Wisconsin 168 [100:923 [100:923 165 Both states’ supreme 169 unds to a harmful extent might Jackson v. Benson In but Fuller continued to believe that but Fuller continued , 536 U.S. 639 (2002). 170 167 at all relationships that avoided “exces- at all relationships that avoided aff’d Ohio’s court was somewhat more cau- The law was also consistent with 172 second voucher program,second voucher targeting another Williams the shift of emphasis objected to 171 at nothing else will work.” ) 6/12/17) 1:58 PM . §§ 3313.974–3313.979 (1995). 166 decision, although close, made although close, decision, clear that the era NN MARQUETTE LAW REVIEW MARQUETTE ELETE A D tional challenge by the narrowest by the challenge tional of margins but the OT OT note 156, at 43–44. ODE N Davis O .C was Milwaukee decided and Catholic business leaders (D supra EV , 218 Wis.853–76. 2d at , R DOCX . at 198. at 879. Davis ITTE HIO INAL -F .Id. .Id. . Jackson 168 169. O 165. Davis v. Grover, 166 Wis. 2d 501, 480 N.W.2d 460 (1992). 166. 1995 Wis. Act 27 §§ 4002–4009. 167. W 170. Benson, 218 Wis. v. Jackson 2d 835, 879, 578 N.W.2d 602, 621 (1998); Simmons-Har- 172 171 After After ANNEY courts rejected challenges to the inclusion of parochial schools in challenges to the inclusion of courts rejected voucher programs based on federal and state constitutional clauses against state support of religion. vouchers were the best option for Milwaukee’s black community. the best option for Milwaukee’svouchers were community. black “is like a bomb“Choice,” he said, that needs to the thrown into a system rotten, th that is so bad, so Ohio enacted the nation’s Ohio enacted the ailing big-city school systemailing big-city school (Cleveland’s). toward privatization and away educational from black students aiding and she withdrew her support, sive entanglement” between church and state werepermitted under the federal First Amendment. justice Donald Steinmetz, speaking for the majority, held that the fact that the law of funds for sectarian purposes was did not prohibit use not constitutionally fatal: The voucher law provided that state funds would schools, and that satisfied recent go to parents, not directly to sectarian U.S. Supreme Court th holdings 946 constitu it survived supreme court’s support for assimilationismof judicial was over. 5R leaders persuaded the 1995 legislature to expand the number of eligible expand the number legislature to the 1995 leaders persuaded of eligible students (to 15% of MPS’sparochial population) and to include student schools in the program. comported with “Wisconsin tradition and past precedent . . . according parents the primary role in decisions regarding the education and up- bringing of their children.” tious, warning that private schools’ “success . . . should not come at the system”expense of our public education and hinting that a voucher pro- gram that deprived public schools of f ris v. Goff, 711 N.E.2d 203 (Ohio 1999), 39285-mqt_100-3 Sheet No. 142 Side B 06/19/2017 09:53:44 06/19/2017 B No. 142 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 143 Side A 06/19/2017 09:53:44 , su- , School . L. J. 703, RB EGISLATURES U L 947 , 919 So. 2d 392. Voucher oppo- TATE 178 ORDHAM S 177 Bush School Voucher Laws: State- , 42 F note 174, at 707–13; Arizona, and Colorado OF ildren in special-educa- . supra ONF C , 351 P.3d 461; Ten additional states enacted Ten additional L ’ Mead, 174 comparison.aspx (last visited Apr. 24, comparison.aspx (last visited Apr. 24, AT Most programs were limited to rivate-school tuition paymentsrivate-school tuition be- See 176 note 174, at 707–13; ,N School Voucher Laws: State-by-State Comparison supra schools designated “failing” by state or schools designated income level, to ch : Pennsylvania and Florida (2001), Iowa, Rhode Island, Rhode Island, : Pennsylvania and Florida (2001), Iowa, combination of the three. provisions mandatingprovisions sys- school a public : Oklahoma (2011), New Hampshire, Virginia and Louisi- : Oklahoma (2011), New Hampshire, Virginia Mead, ) 6/12/17) 1:58 PM The three decisions made clear that ultimately, Taxpayers for Pub. Educ. and another wave thirteen states enacted such of 179 The Right to an Education or the Right to Shop for Schooling: Examin- The Right to an Education or the Right to Shop ELETE 175 Tax credits 711 N.E.2d at 212. D note 175. In 2011, the income eligibility ceiling for Wisconsin’s note 175. In 2011, the income eligibility Tax credits See also OT OT N note 174, at 715–27; supra O , (D : Arizona (1997), Florida (1999), Utah (2005), Georgia (2007), Louisiana : Arizona (1997), Florida (1999), Utah (2005), : Arizona, Colorado, Indiana (2011); Mississippi (2012), North Carolina supra , 202 P.3d 1178; DOCX WISCONSIN LAW IN THE AGE OF INDIVIDUALISM AGE OF THE LAW IN WISCONSIN . Julie F. Mead, INAL -F .Vouchers . Simmons-Harris, .See .Cain .Vouchers dream of full racial assimilation. 173 178. Educ. v. Douglas Cty. Cain v. Horne, 202 P.3d 1178 (Ariz. 2009); Taxpayers for Pub. 177. Mead, 175 173 174 179 176 Opponents won some the Florida, victories: Some the Wisconsin supporters hailed voucher and Ohio decisions M K note 175. ANNEY C Y by-State Comparison Arizona and Georgia (2006), Indiana (2009). (2008), Oklahoma (2010). nents continued to challenge the new laws on a regular basis, now rely- to challenge the new laws on a regular nents continued provisions rather state constitutions’ educational ing heavily on their than federal and state religious-establishment clauses. voucher or tax-credit programsvoucher or tax-credit for p tween 1997 and 2010, Sch. Dist., 351 P.3d 461 (Colo. 2015); Bush v. Holmes, 919 So. 2d 392 (Fla. 2006); Meredith v. Pence, 984 N.E.2d 1213 (Ind. 2013); Hart v. State, 774 S.E.2d 281 (N.C. 2015). (2013), Arkansas (2015). Kansas (2014), Montana,ana (2012); South Carolina and Alabama (2013), Nevada, Tennessee, and Mississippi (2015). pra program was raised and the cap on the number students was eliminated of eligible and the school districts with low property values program was extended to certain other Wisconsin or other indicia of poverty. 2011 Wis. Acts 32, 47. Voucher Laws: State-by-State Comparison 2017] constitutional state violate 5R tem. as the dawnof an era in which would and privatization vouchers eclipse programs and voucher public education, the proliferate; but began to dream the post- proved as elusive as of broad educational privatization Brown 714–27 (2015). 2017). www.ncsl.org/research/education/voucher-law- ing Voucher Programs in Relation to State Constitutional Guarantees ing Voucher Programs in Relation to State Constitutional children living below a fixed tion programs, in to children or somefederal authorities, programs between 2011 and 2015. supreme courts struck down voucher laws their states’ in 2006, 2009, and 2015 respectively. 39285-mqt_100-3 Sheet No. 143 Side A 06/19/2017 09:53:44 06/19/2017 A No. 143 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 143 Side B 06/19/2017 09:53:44 M K 180 C Y The The about 184 , 919 So. 2d Bush ELIGION AND THE ,R One Wisconsin IBLE tury in response to tury in response B 186 note 152, at 147–50; Mead, Simmons-Harris HE [100:923 [100:923 ,T . Art. IX, § 1). supra , OLES ONST , 351 P.3d at 469–75; Colorado’s clause provided .C E. B will wording on the depend of 182 LA ovisions, whichovisions, vary widely. UPERFINE S ONALD ring the state to providering the state to a “uniform, relied heavily on “Blaine clauses” in on “Blaine relied heavily Arizona’s Blaine clause provided that clause provided that Arizona’s Blaine ools would necessarily deprive public hest, relying not on a Blaine clause but hest, relying not , 919 So. 2d at 415. . art. I, § 15 (“[t]he people have a right to the privi- 181 acted in the late 19th cen acted in Bush ality system of free public schools.” see generally ONST God, Civic Virtue, and the American Way: Reconstructing En- C ilar clauses in their states’ constitutions did ilar clauses in their states’ constitutions Taxpayers for Pub. Educ. ) 6/12/17) 1:58 PM MARQUETTE LAW REVIEW MARQUETTE ELETE D The Florida court’s decision put it at odds with The Florida court’s decision put the . 479, 488–90 (2015); D OT OT . art. IX, § 7; . art. IX, § 10. N 185 . art. IX, § 1(a); EV O (D ONST L. R ONST 183 30–37 (1965). ONST 919 So. 2d at 408–09 (interpreting F .C .C , 202 P.3d at 1185; DOCX .C . Corinna Barrett Lain, RIZ OLO LA INAL CHOOLS -F .See .Cain .Bush, .Bush, TANFORD S note 174. 181 184. F 182. A 186. Meredith v. Pence, 984 N.E.2d 1213 (Ind. 2013) (interpreting Hart v. State, 774 S.E.2d 180 183. C 185 Florida’s court went the fart Florida’s court went , 67 S ANNEY UBLIC gel Indiana and North Carolina supreme courts, which in 2013 and 2015 respectively held that sim voucher systems.not foreclose public funding of at 402–05. 281 (N.C. 2015) (interpreting N.C. that state and local governmentsthat state and local may in aid of any not do “anything or to help sup- society, or for any sectarian purpose, church or sectarian port or sustain any or sectarian de- school . . . controlled by any church nomination.” lege of education”), art. V, § 2 (no law except for public purpose) and art. IX, § 6 (certain state lege of education”), art. V, § 2 (no law except for funds “shall be . . . used exclusively for establishing and maintaining a uniform system of free public schools”)). P 948 programs of voucher the fate states in all The Arizonaand Colorado courts en constitutions, their states’ 5R education pr constitutions’ their state court reasoned that the clause implicitly barred any public support of of severe state budgetary constraints, private schools because in an era financial support of private sch schools of funds. supra “no . . . appropriation of public money“no . . . appropriation [shall be] made in aid of any or sectarian school”; church, or private a nativist-fueled revolt against immigrants’ revolt a nativist-fueled public efforts to secure schools. funding for parochial efficient . . . and . . . high qu efficient . . . and on a constitutional provision requi on a constitutional voucher critic has suggested, consistent withvoucher critic has suggested, consistent the Florida court’s reason- ing and with the Ohio supreme warning court’s in private-school competition that if Wisconsin’s for scarce public funds, voucher funding and cut state public- legislature continues to expand 39285-mqt_100-3 Sheet No. 143 Side B 06/19/2017 09:53:44 06/19/2017 B No. 143 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 144 Side A 06/19/2017 09:53:44 , 187 ENTER C L ’ note 174, at AT 949 ., N supra DUC E note 189, at 268–72. Schools, Race, and Money T OF ’ supra EP D 2009, at 126, 130, 134 (2009), San Antonio Independent School Assimilationists then turned ew of school financing, crafting ew of school financing, crafting responded by striking down Cal- 192 DUCATION They had some but even success E 193 which individualism and assimilation- They gained an important They gained early victory ) 6/12/17) 1:58 PM 189 ONDITION OF C ELETE note 152, at 147–48. From 1995 to 2007, approximately 93% of all note 152, at 147–48. From 1995 to 2007, approximately note 152, at 75, 100–06, 120–24; Ryan, note 152, at 12–15, 75–77; James E. Ryan, 557 P.2d 919 (Cal. 1976). D (1973) the U.S.Supreme Court held that funding OT OT HE N note 189, at 271–72. supra supra supra The California court but two later, in years O , , , ., T (D 191 190 supra TATS DOCX WISCONSIN LAW IN THE AGE OF INDIVIDUALISM AGE OF THE LAW IN WISCONSIN . Courts preferred to leave that task to legislatures and many Courts preferred to leave that UPERFINE UPERFINE UPERFINE .S L.J. 249, 267–68 (1999). INAL 194 -F . Serrano v. Priest, 188 DUC ALE E 188. S 194. Ryan, 189. S 187. v. Goff, 711 N.E.2d 203, 212 (Ohio 1999); Mead, Simmons-Harris 190. Serrano 1971). v. Priest, 487 P.2d 1241 (Cal. 191. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973). 192 193. S Another education in area of M K ANNEY C Y 736–37. (1973–84) to state constitutional equal-protection and education clauses, and education clauses, (1973–84) to state constitutional equal-protection states to provide a “thorough” or “effi- particularly those that required cient” school system or the like. when courts took a communitarian vi and implementing as difficult as it had for segre- solutions proved to be gation. ifornia’s school-finance system again, this time based on the state con- stitution’s equal-protection clause. 2017] it may funding school constitution. the state of afoul run eventually share schools’ the public the voucher controversy throughout Ironically, has remained population of total student re- vouchers have steady, and cool reception fromceived a many wealthier, predominantly white dis- might that vouchers parents worry tricts whose inter- in increased result levels of achieve- and dilution of their districts’ district student transfers 5R schoolchildren attended public schools, 6% attended private schools, and 1% were home schoolchildren attended public schools, U.S. that period. schooled; the figures changed little during FOR District v. Rodriguez discrepancies based on local wealth do not violate the federal equal pro- tection clause. https://nces.ed.gov/pubs2009/2009081.pdf [https://perma.cc/RB5P-BBW5].https://nces.ed.gov/pubs2009/2009081.pdf when California’s supremestruck down court its state’s school-finance system (1971) ism The fact that states finance is public-school financing. have clashed schools primarily has given wealthy through local property taxes dis- in providing high- advantage over poorer districts tricts a substantial and in the late 1960s assimilationistsquality education, began challeng- school finance systemsing property-tax-based as violative of the federal clause. equal-protection 109 Y ment. 39285-mqt_100-3 Sheet No. 144 Side A 06/19/2017 09:53:44 06/19/2017 A No. 144 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 144 Side B 06/19/2017 09:53:44 M K C Y court’s . art. X, § 3 note 189, at Kukor ONST Litigated Learning supra Kukor v. Grover .C note 189, at 266–69. IS at required local at required local The In supra 199 198 Local responsibility, [100:923 [100:923 200 ate” education in all dis- ate” education in to find good solutions. solutions. good to find Michael Heise, See generally tain their children’s competitive ad- equality of basic educational oppor- rer districts; the court relied heavily rer districts; the at poor and minority will schools re- utional provision th utional provision note 152, at 120–24. (1976), a divided supreme (1976), a divided court struck in some respects: the majority held that . 2417, 2437–45 (2004); Ryan, supra , EV ) 6/12/17) 1:58 PM Davis local-finance provision. .L.R MARQUETTE LAW REVIEW MARQUETTE ELETE note 152, at 147–49. UPERFINE D AND S OT OT Buse v. Smith 197 N note 189, at 271–72. supra . art. X, § 4 (providing that “Each town and city shall be required to raise . art. X, § 4 (providing that “Each town and , O , 57 V (D see also ONST supra , 148 Wis. 2d 469; Davis v. Grover, 166 Wis. 2d 501, 480 N.W.2d 460 (1992). In the late 1980s, assimilationists In the late to shift away began from DOCX .C . IS UPERFINE 195 The shift represented a triumph The shift represented sorts for individualism: of in INAL -F . Kukor 196 198. W 200 196. Court decisions in Kentucky and Montana accepting this argument inaugurated 197. Ryan, 195. S 199. 148 Wis. 2d 469, 484–94, 436 N.W.2d 568, 575–78 (1989); W The course of the school-finance controversy in Wisconsin controversy was typ- school-finance The course of the ANNEY equality as a goal and to argue that state education clauses required clauses required state education to argue that as a goal and equality sufficient funds for an states to provide “adequ tricts. ically bumpy. In down a law some that used taxes collected from property wealthy dis- education in poo tricts to subsidize on an unusual Wisconsin constit districts to provide a portion of all school funding. districts to provide a portion of all and the Limits of Law (1989), reformers mounted a new challenge based on the state’s uni- formity clause as well clause. as its equal-protection (providing in part that “the legislature shall provide by law for the establishment of district (providing in part that “the legislature shall provide by law for the establishment be free and schools, which shall be as nearly uniform as practicable; and such schools shall without charge for tuition to all children between the ages of 4 and 20 years”). 268–69, nn.84–85; the new phase and were influential in persuading other state courts to do likewise. Rose v. the new phase and were influential in persuading Council for Better Educ., Inc., 790 S.W.2d (Ky. 1989); Helena 186 Elementary Sch. Dist. v. State, 769 P.2d 684 (Mont. 1989). For the period 1989–2000, Ryan has identified eleven court decisions rejecting it. Ryan, decisions adopting this argument and eleven by tax, annually, for the support of common schools therein, a sum not less than one-halfby tax, annually, for the support of common the of amount received by such town or city respectively for school purposes from the income the school fund.”); Buse v. Smith, 74 Wis. N.W.2d 2d 550, 247 141 (1976). the majority reasoned, carried with it a measure of local discretion and Wealthy by levying efforts to equalization responded districts often supplemental to main taxes in order 950 or wereresisted legislatures simply unable vantage. 5R the words of one commentator, “th main separate from white [now] schools and wealthier appears to be taken as a given.” decision foreshadowed the state constitution required only theory, again based heavily on tunity and rejected the new “adequacy” the state constitution’s 39285-mqt_100-3 Sheet No. 144 Side B 06/19/2017 09:53:44 06/19/2017 B No. 144 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 145 Side A 06/19/2017 09:53:44 , , 207 208 202 .L. IS Da- One HOICE 203 C By con- By , 1995 W The Exception 206 951 204 In addition, many In addition, 205 EPRODUCTIVE R Planned Parenthood of Southeastern Planned Parenthood of Southeastern policy matter school for individual Suzanne M. Steinke, Comment, See through equalized funding showed through equalized BORTION AND AND BORTION :A generally, clashes with many Americans’ How Anti-Abortion Intensity Wins in Pro-Choice America The Intensity Gap: Can A Pro-Life Platform Win Elections? would be profoundly immoral. note 24, at 62. note 24, at 92–93. ) 6/12/17) 1:58 PM supra supra , , , arguing that the existing aid formula that the existing , arguing was“dis- a ELETE (1992) was moment a transitional for both sides. D (2000) the court joined the shift from court joined the (2000) the to ad- equality OT OT N O Kukor ARBONE ARBONE ATTLEGROUNDS (D B &C &C , 148 Wis. 2d at 490–95. DOCX WISCONSIN LAW IN THE AGE OF INDIVIDUALISM AGE OF THE LAW IN WISCONSIN . , Oct. 27, 2014; Jon Perr, ¶¶ 190–92, 197–98, 202 (Sykes, J., concurring and dissenting). The same The who justices woulddefend assimilationism in at 91–95; Kelefa Sanneh, . at 525 (Bablitch, J., dissenting). AHN AHN the high Court disappointed abortion opponents by making abortion Court disappointed the high , www.dailykos.com/story/2015/04/26/1379912 (last visited Apr. 24, 2017). 201 INAL ODERN OS -F .Id. .Id. . Kukor .Id .Id. ORKER K Y The Supreme decision in Court’s 203. Vincent Voight, 2000 WI v. 93, ¶¶ 48–78, 236 Wis. 2d 588, 614 N.W.2d 388. 204 205. C 201 202 207. C 206 208. Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833 (1992). Abortion has been a central battleground in the struggle over expres- . 1387. Casey M K dissented in dissented Vincent v. Voight v. Vincent ANNEY EW AILY EV C Y V. M V. vis poor alike.” for rich and public education the ideal of “free grace” to opponents view abortion as murder, as to which an issue any compro- mise effort or slackening of dissenter, Justice Dianedissenter, Justice Sykes, argued past difficulties in imple- that menting opportunity equality of wasthat school funding primarily a districts in which had no business intervening. courts R The greater passion that abortion opponents have brought to the battle The greater passion that abortion has given them success out of proportion to their numbers. In 2017] control. In 5R D Pennsylvania v. Casey sive individualism. Abortion because it, elicits passionate opposition like expressive individualism moralcore desire for “clear, unbending and behavioral codes” enforced social leadership. through group unity and strong trast, many give first priority to access to abortion-rights supporters contraception: they view not as a positive good but as a “re- abortion to be used when contraception fails. grettable but necessary fallback” to the Rule: Wisconsin’s Fundamental Right to Education and Public School Financing to the Rule: Wisconsin’s Fundamental Right to N equacy by holding that the state’s equal-protection clause encompassed clause state’s equal-protection holding that the equacy by justices differed on adequate education, although the the right to an whether the aid formula met then in effect the new standard. 39285-mqt_100-3 Sheet No. 145 Side A 06/19/2017 09:53:44 06/19/2017 A No. 145 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 145 Side B 06/19/2017 09:53:44 , ., M K 211 212 C Y NST I UTTMACHER Id. (iii) targeted-regu- : An Historical Perspective , G 215 [100:923 [100:923 ’s simple test three-part Roe . L.J. 75, 83–84 (2013). T to provide information to pa- S (iv) laws public prohibiting Roe v. Wade 216 king it more for eligible difficult Lessons from Personhood’s Defeat: Abortion HIO twenty-four hours, or forty-eight facilities and staff equivalent to a facilities and staff equivalent to , 74 O admitting privileges at a local hospi- (ii) waiting-period laws requiring that y/explore/overview-abortion-laws 214 held that: (i) during the first trimester of pregnancy, including, most commonly,informed- (i) Roe , 410 U.S. at 163–65. together with laws requiring parental consent and has accelerated dramatically and has accelerated since 2010. ) 6/12/17) 1:58 PM Casey Roe but it also replaced but it also 213 Abortion Before and After MARQUETTE LAW REVIEW MARQUETTE 209 ELETE An Overview of Abortion Laws D Casey OT OT N Id. Court ma also held that O decisions that had suggested the Court would look at such regulations decisions that had suggested the Court (D (1973), notes 230–31 and accompanying test. 505 U.S. at 876–79. , 505 U.S. at 877–78, 880–84. Three members of the majority retreated from , 505 U.S. at 877–78, 880–84. Three members . 833, 846–48 (1999); Maya Manian, Casey DOCX Casey Id. . David Garrow, EV INAL , pre- -F . Casey .See . See infra . Casey, The .L.R Roe LB 210 211 212 209. 113 (1973). 410 U.S. 210 216 213. all states had informed-consent law, although the details of the laws 2015 nearly In 214. As of 2015, twenty-five states required parental consent for an abortion; thirteen 215. As 2015, four states required a seventy-two-hour waiting period, three states a of Abortion opponents have procured passage of a wideAbortion opponents of anti- variety Roe v. Wade ANNEY of legality withof legality a more could not place that states generalized standard a woman’s burden” on an “undue fe- to abort a non-quickened right tus. states could not interfere with a woman’s choice to have an abortion; (ii) from the end of the to have an abortion; choice states could not interfere with a woman’s regulate abortion but only in order to protect first trimester until quickening, states could maternal health; and (iii) from regulate abortion in order that point until birth, the state could to protect “potential[]. . . life.” 62 A after counseling before an abortion is performed;after counseling before an abortion for minors to have an abortion; usually patients wait a certain period, varied extensively. Restrictions and Side Effects on Women’s Health lation-of-abortion-provider (TRAP) laws example, that, for require doc- tors performing abortions to have tal or require abortion clinics to have tal or require abortion clinics to full-service ambulatory surgical center; 952 created it had rights of abortion the zone overturn not that it would clear in abortion through opponents in their efforts to restrict This encouraged of abortion procedures,extensive regulation an effort that has continued without since letup 5R abortion measures since abortion providers consent laws requiring tients emphasizing and and psychological risks of abortion the physical promoting alternatives, post- with a skeptical eye. women was to obtain abortions an undue burden. not necessarily [https://perma.cc/H4FC-XEQS] (last visited on Apr. 24, 2017). states required only that parents be given notice before the abortion. eighteen- forty-eight-hour period, twenty states a twenty-four-hour period, and one state an hour period. https://www.guttmacher.org/state-polic 39285-mqt_100-3 Sheet No. 145 Side B 06/19/2017 09:53:44 06/19/2017 B No. 145 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 146 Side A 06/19/2017 09:53:44 PM PM

, a Ca- . 1:58

Id Roe . 9 (2014) EV R by prohib- Y 953 . 14 (2012) (giv- ’ EV OL Roe R P Y ’ OL P itutional challenges Troubling Trend: More States As graph below the 218 UTTMACHER , 17 G UTTMACHER A Surge of State Abortion Restrictions Puts note 213. , 15 G caid and other medical and other caid insurance period during which,period during under Results have been mixed. Courts supra

, 220 laws. ) 6/12/17 ) ELETE Casey D OT OT N O (D notes 221, 223–27. and (v) deadline laws and (v) that limits test the of An Overview of Abortion Laws DOCX DOCX WISCONSIN LAW IN THE AGE OF INDIVIDUALISM AGE OF THE LAW IN WISCONSIN . 217 INAL -F . See infra

220 219. Heather D. Boonstra & Elizabeth Nash, 217. As funds to perform abortions of 2015, thirty-three states prohibited use of public 218. As after twenty weeks of pregnancy of 2015, twelve states prohibited abortions mounted const Abortion-rights advocates have 219 : M K ANNEY R C Y

except (in some states) in cases of danger to the mother’s resulting from life or pregnancies rape or incest. ing the 2000, 2005, and 2011 statistics). ing the 2000, 2005, and 2011 statistics). iting all abortions after a period of timeabortions after a iting all sometimes close to (and before) of the first trimester,the end the woman’s is absolute. choose abortion right to

2017] 2017] Medi through of abortions funding programs; 5 illustrates, the number of restrictive laws has grown steadily since sey Providers—and the Women They Serve—in the Crosshairs Hostile to Abortion Rights as Middle Ground Shrinks (giving the 2013 statistics); Rachel Benson Gold & Elizabeth Nash, (with exceptions where an abortion is necessary to save the mother’s life or preserve her (with exceptions where an abortion is necessary after twenty-four weeks; twenty states prohibited health); eight states prohibited abortions at which Roe allowed state restriction of abor-abortions after fetal viability, the earliest point tion; and three states prohibited abortions from the beginning of the third trimester. to many of the post- 39285-mqt_100-3 Sheet No. 146 Side A 06/19/2017 09:53:44 06/19/2017 A No. 146 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 146 Side B 06/19/2017 09:53:44 M K , 29 Roe C Y Validity of Court indi- Court and accord- 222 laws, although although laws, Abortion-rights aff’d in part and rev’d in Casey Federal and state Federal and state 226 224 The fate of informed- [100:923 [100:923 The 223 Maher(1977) v. Roe, 432 U.S. 464 221 see laws have generated the mostlaws have generated eral funding of abortions except eral funding of abortions except ve universally adhered to the adhered ve universally (1980) the Supreme that Court held Christine L. Raffaele, Annotation, er to pass constitutional musterer to pass constitutional such upheld waiting-period upheld waiting-period , 119 A.L.R. 5th 315 (2016). See generally ) 6/12/17) 1:58 PM MARQUETTE LAW REVIEW MARQUETTE ELETE Harris v. McRae D OT OT N O Pro-Choice Miss.Fordice, 716 So. 2d 645 (Miss. v. 1998); Planned & L. 41, 61–62 (2015). (D MKB Cir. 2015); Edwards v. Mgmt. Corp. v. Stenehjem, 795 F.3d 768 (8th Karlin v. Foust, 975 F. Supp. 1177 (W.D. Wis. 1997), 225 DOCX . ENDER INAL State Court Protection of Reproductive Rights: The Past, the Perils, and the Promise State Court Protection of Reproductive Rights: -F . See, e.g., . See, e.g., . See, e.g., .J.G 221 222. Planned (1992). Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 881–84 223 224. Stuart sonogram provision); v. Camnitz, 774 F.3d 238 (4th Cir. 2014) (striking down 225 226. Harris v. McRae, 448 U.S. 297, 302–03 (1980); Public-funding restrictions and TRAP Public-funding restrictions 188 F.3d 446 (7th Cir. 1999). ANNEY OLUM provisions. At least seven supreme their states’ courts have interpreted legal controversy. In legal controversy. consent laws often has depended on how openly they were promotedon how openly often has depended consent laws measuresas anti-abortion at the time of enactment. ingly, both federal and state courts have struck down such laws spar- laws such down struck have courts state and federal both ingly, ingly and have trimmed them only at the edges. supporters attempted with some success to combat similar funding re- constitutional to a variety of state strictions at the state level by turning 954 withfaced to laws challenges prohibiting twenty at abortion weeks or at any time viability ha prior to fetal 5R framework down have struck and laws. the courts have almost universally many indicated that in ord have laws mustwhere contain exceptions a woman’s life or health is in im- mediate peril. Beck, 786 F.3d 1113 (8th Cir. 2015); Isaacson v. Horne, 716 F.3d 1213 (9th Cir. 2013); Dawn E. Horne, 716 F.3d 1213 (9th Cir. 2013); Dawn E. v. Beck, 786 F.3d 1113 (8th Cir. 2015); Isaacson Johnsen, C where mother’s necessary to preserve the health or life, was constitu- tional; it rejected arguments for de- that singling out abortion services clause. funding violated the federal equal-protection the Hyde Amendment, prohibiting fed part, Tex. Med.570 (5th Cir. 2012) (up- Providers Performing Abortion Servs. v. Lakey, 667 F.3d holding a more circumspectly-enacted provision); Parenthood of the Heartland v. Planned Iowa Bd. of Med., 865 N.W.2d 252 (Iowa 2015). State ‘Informed Consent’ Statutes by Which Providers of Abortions Are Required to Provide Patient Seeking Abortion With Certain Information Parenthood of Middle Tenn. v. Sundquist, 38 S.W.3d 1, 24 (Tenn. 2000) (striking down law ex- providing for forty-eight-hour waiting period because the court felt that the emergency ception was not broad enough). cated that informed-consentcated that and waiting-periodrequirements did not automaticallyrights on abortion an undue burden create (holding that federal funding could be limited to medically necessary abortions). 39285-mqt_100-3 Sheet No. 146 Side B 06/19/2017 09:53:44 06/19/2017 B No. 146 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 147 Side A 06/19/2017 09:53:44 231 see also Crocodiles in See generally 955 . 1501, 1509–15 EV 542 N.W.2d 17; .L.R , 687 P.2d 785 (Or. 1984); A 542 N.W.2d 17 (Minn. 1995); , Gomez, and a handful of courts of courts and a handful , 118 A.L.R. 5th 463 (2016). Gerald F. Uelmen, , 98 V 227 expansively to prohibit fund- to prohibit expansively See also of full-service ambulatory sur- Other rejected such courts have d requiring abortion clinics to pro- d requiring abortion 228 , 625 P.2d 779; aff’d on other grounds Myers After anti-abortion forces made large gains , Validity of State Statutes and Regulations Limiting or Re- , Validity of State Statutes and Regulations requiring abortion providers to have admit-requiring abortion 230 Taking Conscience Seriously ) 6/12/17) 1:58 PM , 56 P.3d 28; 38 S.W.3d 1 (Tenn. 2000). Several decisions striking down anti- . 1133, 1144–46 (1997). ELETE , D EV OT OT N note 212, 101–14. L. R O (D Humphreys v. Clinic for Women, Inc., 796 N.E.2d 247 (Ind. 2003); Doe v. Christensen v. Wis. Med. Bd., 551 F. Supp. 565, 569 (W.D.1982) (indi- Wis. AME supra D 229 DOCX WISCONSIN LAW IN THE AGE OF INDIVIDUALISM AGE OF THE LAW IN WISCONSIN State Dep’t of Health & Soc. Servs. v. Planned Parenthood of Alaska, 28 P.3d State Dep’t of Health & Soc. Servs. v. Planned . Elizabeth Sepper, INAL OTRE -F . See, Corp. e.g., Simat . See, e.g., .See . See . See, e.g., Doe v. Maher, 515 A.2d 134 (Conn. Super. Ct. 1986). Doe v. Maher, 515 A.2d 134 (Conn. Super. Ct. 1986). , 515 A.2d 134; Women’s Health Ctr. of W.V., Inc. v. Panepinto, 446 S.E.2d 658 (W. Va. 228 229 227 231 230 Several early TRAP laws, including efforts to limit abortion-related , 72 N M K ANNEY C Y see also Right to Choose v. Byrne, 450 A.2d 925 (N.J. 1982); Planned Parenthood Ass’n v. Dep’t of Right to Choose v. Byrne, 450 A.2d 925 Human Res., 663 P.2d 1247 (Or. Ct. App. 1983), in state legislatures in the 2010 election, they turned their in the 2010 election, they turned in state legislatures attention to lawshospital-equivalency ting privileges at a nearby hospital an ting privileges at laws have had bite: they have gical centers. The hospital-equivalency number of abortion clinics and provid- produced a sharp decline in the ers nationwide and have limited access for many American women. vide the same staff and facilities required services by non-physicians and to imposeservices by non-physicians certification re- extensive quirements performing on physicians in the abortions, had hard going courts: they were struck down little or on the ground that they added no margin and could only be viewed of safety to abortion procedures as abortion. efforts to restrict challenges. have reached the samehave reached state right-to-pri- invocation of result through vacy, ERA, clauses. public-safety and 2017] clauses due-process and equal-protection ing discriminationany sort as to abortion, of 5R (2012); Manian, Maher 1993). Dep’t of Soc. Servs., 487 N.W.2d 166 (Mich. 1992); v. Dep’t of Pub. Welfare,Fischer 502 A.2d 114 (Pa. 1985); Bell v. Low Income Women of Tex., 95 S.W.3d 253 (Tex. 2002). Tracy Bateman Farrell, Annotation by Indigent Women stricting Public Funding for Abortion Sought 904 (Alaska 2001); Simat Corp. v. Ariz. Health Care904 (Alaska 2001); Simat Corp. v. Ariz. Health Sys., 56 P.3d 28 (Ariz. Cost Containment Myers,2002); Comm. to Defend Reprod. Rights v. 625 P.2d 779 (Cal. 1981); Moe v. Sec’y of 1981); Women(Mass. v. Gomez Admin. & Fin., 417 N.E.2d 387 abortion laws have generated substantial backlash. cating that a Medical requiring that second-trimester abortions be per- Board regulation emergency was presumptively unconstitutional); formed in surgical hospitals except in an Women’s Med. 463 F. Supp. 531 (D.R.I. 1978); State v. Ctr. of Providence, Inc. v. Cannon, Presidential Women’s Ctr., 884 So. 2d 526 (Fla. Dist. Ct. App. 2004); Planned Parenthood of Middle Tenn. v. Sundquist the Bathtub: Maintaining of Judicial Politiciza- the Independence of State Supreme Courts in an Era tion 39285-mqt_100-3 Sheet No. 147 Side A 06/19/2017 09:53:44 06/19/2017 A No. 147 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 147 Side B 06/19/2017 09:53:44 , M K 235 C Y . amend- , 806 F.3d Federal trial, to NN rev’d in part . §§ 171.0031, 233 A aff’d NN Perry A Karlin v. Foust ODE .C ODE In CC C laws in originated 239 and a law requiring .O EX 237 [100:923 [100:923 AFETY All of Wisconsin’s pre- 238 &S A Texas district judge con- 234 eral appeals court disagreed in EALTH .H ey concluded that the Wisconsiney concluded that EX opponents challenged the laws opponents challenged as a g privileges at a hospital withing privileges at a thirty 232 on providers’ due-process rights and of rights providers’ due-process on ’s “undue burden” threshold? burden” threshold? ’s “undue the federal due-process clause. the federal due-process Casey ) 6/12/17) 1:58 PM MARQUETTE LAW REVIEW MARQUETTE 579 U.S. —, 2016); Planned Slip. Op., Docket No. 15-274 (June 27, ELETE D , 134 S. Ct. 2841 (2015). OT OT rev’d, N O , 94 F. Supp. 3d 949. notes 237–38. (D , including a law prohibiting abortion after fetal viability , 46 F. Supp. 3d 673. cert. denied DOCX . a detailed informed-consent law (1985); Casey INAL 236 -F . Van Hollen . Lakey .Id. . See supra laws created exceptions where the restrictions would endanger 233. Whole Women’s Health v. Lakey, 46 F. Supp. 3d 673 (W.D. 2014), Tex. 232.Leg., 2d C.S., ch. 1, 2013 Tex. Sess. 83rd 2013 Wis. of July 12, 2013, Act 37; 2013 Act 234 235 236. 1985 Wis. Act 56. 237 238. 1991 Wis. Act 263. 239 Wisconsin in the mainstream has been solidly of the movement to- The leading test cases for hospital-equivalency test cases for The leading ANNEY allow airing of whether a full the laws genuinely promoted public or served only to limithealth and safety otherwise-legal Wis- abortions. Williamconsin federal judge Conl law’s primary purpose wasabortion and struck it to restrict access to down, court agreed. and a divided appeals parental consent to a minor’s abortion (1991). ing §§ 164.052, 055 (West 2015)). ing §§ 164.052, 055 (West 2015)). cluded that Texas’s law imposed in that an undue burden, particularly it would require some Texas women to travel hundreds of miles to reach a compliant abortion facility; Texas’s fed part but in 2016 the U.S. Supreme Court agreed with district judge. the 956 lawshospital-equivalency The supporters abortion-rights roused have how raised the question: and have requirements far can such be ex- they cross tended before 5R ward restrictive abortion laws. state enacted several restrictive laws The prior to (1985); 171.041–048, 171.061–064, amending 245.010–011 (West171.041–048, 171.061–064, amending 245.010–011 2015); T the right of privacy impliedthe right of privacy in violation of patients’ and aborti violation of patients’ Casey Law Serv. 4795, 4795–802 (West) (codified at T judges in both states conducted trials designed, like the conducted trials designed, judges in both states Parenthood of Wis., Inc. v. Van Hollen, 94 F. Supp. 3d 949 (W.D. Wis. 2015), 790 F.3d 563 (5th Cir.), Wisconsin enacted laws In 2013 both states and Texas. requiring abor- have admittintion providers to milestheir practice location; of the mother’s or health or where, life because of family tensions or for other reasons, parental consent was not practicable. 908 (7th Cir.), 39285-mqt_100-3 Sheet No. 147 Side B 06/19/2017 09:53:44 06/19/2017 B No. 147 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 148 Side A 06/19/2017 09:53:44 188 Validity, prohib- aff’d in part , 162 F.3d 463 242 , 76 A.L.R. 5th 957 onal structure Doyle inform patients of aff’d in part, rev’d in part, After a period of stale- NDIVIDUALISM I The legislature became The legislature 246 246 240 which was struck down be- which was struck Carolyn Bower, Annotation, Abortion providers were also Abortion providers See eated the instituti to the fetal heartbeat and requir- heartbeat and to the fetal 245 XPRESSIVE E 247 GE OF and prohibited state funding of abortions and prohibited A 243 iring abortion providers to providers iring abortion ) 6/12/17) 1:58 PM on was also upheld. on was also : in 1996 and 1997 it established a twenty-four-: in 1996 and 1997 expanded the informed-consent law, A. The Erosion of Consensus The 1996–97 laws drew all sur- challenges but ELETE 241 D 244 OT OT Casey N O notes 232 and accompanying text. (D OURTS IN THE 188 F.3d 446, 491–93 (7th Cir. 1999). DOCX WISCONSIN LAW IN THE AGE OF INDIVIDUALISM AGE OF THE LAW IN WISCONSIN . . VI. C VI. INAL -F .Id . See supra 243. 1997 Wis. Act 219. The U.S. Supreme Court subsequently held that states could 241. 1995 Wis. Act 309. 242 240. Karlin 1224–26 (W.D. v. Foust, 975 F. Supp. 1177, 1217–18, Wis. 1997), 244. Wis. 1995 Act 27. 245. Planned Parenthood of Wis., Inc. v. Doyle, 162 F.3d 463 (7th Cir. 1998). 246. Karlin v. Foust, 975 F. Supp. 1177 (W.D. Wis. 1997), 247 Expressive individualism also perm M K ANNEY C Y and rev’d in part, allowed to omit information if, in their judgment, providing that infor- mation would jeopardize the mother’s health. without exception. of American state courts. Prior to 1960, dissent in state supreme court 2017] most Crabb upheld Judge (1997), informed-consent of the 1985 parts law provisions requ except for 5R the availability of services for listening of services the availability informational to pay for ing providers materials; the heart- on appeal, beat-information provisi prohibit partial-birth abortions, although it indicatedprohibit partial-birth abortions, although it might hold such prohibitions uncon- stitutional under some circumstances. 550 U.S. 124 (2007). Gonzales v. Carhart, mate (2003–10) during which a Democratic repeatedly vetoed governor anti-abortion measures, Republicans gained control of the legislature and initiated a new election and the governorship in the 2010 series of restrictive laws, centerpiece of which the was hospital-equiva- the 2013 lency law previously discussed. ited partial-birth abortion, ited partial-birth more active after vived except the partial-birth abortion law, vived except the cause it also prohibited an abortion methodcause it also prohibited that was more commonly used and thus deemed moreessential. hour waiting period, (striking down law banning partial-birth abortion because it provided no emergency excep- tion and also extended to other types of abortion). Construction, and Application of Statutory Restrictions on Partial Birth Abortions F.3d 491 (7th Cir. 1999) (waiting period and informational requirements); 637 (2000; updated 2016). 39285-mqt_100-3 Sheet No. 148 Side A 06/19/2017 09:53:44 06/19/2017 A No. 148 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 148 Side B 06/19/2017 09:53:44 M K PM PM

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There 248 [100:923 [100:923 to be turned out in quantity. to be turned ) 6/12/17 ) MARQUETTE LAW REVIEW MARQUETTE ELETE D OT OT N O notes 5–6, 18–26 and accompanying text. (D DOCX DOCX supra .

249 INAL -F .See 248. For example, the Wisconsin in 1940; 181 in Supreme Court issued 284 decisions 249

ANNEY R

958 wasdecisions far from unknownwas but consensus norm. the clear This was by supreme caseloads borne part to the heavy due in in courts the many lacked intermediate states that courts. Most appellate cases were had and decisions routine 5 1980; 87 in 2000; and 68 in 2010. North Carolina’s supreme court issued 420 decisions in 1940 1980; 87 in 2000; and 68 in 2010. North Carolina’s issued 608 decisions in 1940 and 186 in 2010; Cali- and 57 in 2010; New York’s highest court in 1940 and 109 in 2010. The Wisconsinfornia’s supreme court issued 163 decisions and part by the fact that each state created an interme- North Carolina drops can be explained in (North Carolina in 1967 and Wisconsindiate court of appeals in the late 20th century in 1977), inter- but that factor does not explain the drops in New York and California (which created from mediate courts of appeals in 1896 and 1904 respectively). The figures were compiled York’s each court’s case reports for the years in question and are on file with the author. New and California’s highest courts were chosen for study because they are commonly considered chosen to be among the most influential state courts of the period. North Carolina’s court was because it is a leading court from a different region of the country. was little time judicial differ- opinions elaborating for lengthy available ences of view; were such opinions only for the reserved most important consensus cultural constraints: cases. There were also and controversial wereand collegiality in a society that placed communitarian valued and particularly concepts of liberty and conduct, bounds on acceptable by a mid-20th a premium century legal culture that placed uni- on legal formity. 39285-mqt_100-3 Sheet No. 148 Side B 06/19/2017 09:53:44 06/19/2017 B No. 148 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 149 Side A 06/19/2017 09:53:44 , 253 OLITICS P 959 254 In other states OLARIZED P 1451, 1483–84 (2009). 1451, 1483–84 (2009). ., www.people-press- 251 S . ’ TR EV C L. R MERICA A ESEARCH R California’s consensus rate consensus California’s , 89 B.U. Reversal, Dissent, and Variability in State EW 250 , P AUSES OF Id. C ., Fall 2014, at 9. The Red, the Blue: Political Polarization Through as illustrated by results for four sam- by results for as illustrated AW .L Wisconsin’s rate has plunged consensus ARQ 252 , M ) 6/12/17) 1:58 PM ELETE HARACTERISTICS AND D note 230, at 1136–39. OT OT ?C N O supra (D ATION N DOCX WISCONSIN LAW IN THE AGE OF INDIVIDUALISM AGE OF THE LAW IN WISCONSIN . LUE INAL B -F . Political Polarization in the American Public note 26, at 1–48, 119–222; Craig Gilbert, 254. The figures were compiled from the Wisconsin case reports for 1940, 1960, 1980, 250. The each court’s case reports for 1940, 1960, 1980, 2000, figures were compiled from 251. Uelmen, 252 253. Theodore & Geoffrey P. Miller, Eisenberg Consensus began eroding in many in began eroding Consensus late 20th during the states cen- M K ANNEY ED AND C Y plunged earlier and moreplunged largely to other states due than that of rapidly divisions among over the death penalty and criminal its justices proce- dural rights. A catharsis waswhen reached in 1986 removed voters and thereafter the on those issues, as too liberal three justices perceived court was more cautious about showing division. open tury. Patterns of erosion differed, of erosion tury. Patterns shownple states the graph above. in more a na- than that of the other states, although deeply and steadily Wisconsin’s in 2003 suggests that tional survey conducted supreme court is not the most unanimity divided: in that year, rates ranged from 97.9% 21.1% (Oregon) to (Mississippi), with a median rate of 74%. Dissent has not been confined to individualDissent has not been confined to of all judges: by 2010, half Wisconsin cases elicited dissents from two more or justices. 2017] 5R Wisconsin’s unanimity rate that year was 50.5%. 2000, and 2010 and are on file with the author. org./2014/06/12/political-polarization-in-the-american/public/ (last visited Apr. 24, 2017); org./2014/06/12/political-polarization-in-the-american/public/ R and 2010 and are on file with the author. the Prism of Metropolitan Milwaukee supra such as New and North York drop consensus did not begin to Carolina, whenuntil the 21st century to increase rap- political polarization began the nation. idly throughout Supreme Courts: The Centrality of Jurisdictional Source 39285-mqt_100-3 Sheet No. 149 Side A 06/19/2017 09:53:44 06/19/2017 A No. 149 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 149 Side B 06/19/2017 09:53:44 M K PM PM

, 89 C Y 1:58

school-financing Vincent [100:923 [100:923 ]. Later, with fervor unabated, Heated rhetoric also became ons and to find personal as well Reflections 256 case, in which members of the ma- Reflections on the Wisconsin Supreme Court nts, and prevailing justices have re- nts, and prevailing justices have Davis ) 6/12/17 ) MARQUETTE LAW REVIEW MARQUETTE ELETE court had “made up” the constitutional right to adequate funding D Not surprisingly Wisconsin, a leader in the trend OT OT 255 N O notes 12–17 and accompanying text. The 2000 notes 12–17 and accompanying text. The Vincent Madison Teachers, Inc. v. Walker, 2014 WI 358 Wis. 2d 1, 851 99, ¶ 51, (D ¶ 189 (“By twisting the definition of benefits to exclude pension contribu- ¶ 189 (“By twisting the definition of benefits . 723, 737 (2006) [hereinafter Sykes, DOCX DOCX . id. EV R INAL

-F . See, e.g., . See supra L.

. 255 256 Judicial intemperance has grown Dissent- consensus has eroded. as ANNEY ARQ R

and had exposed the “new federalism” as mere “intellectual cover for state judges to embed and had exposed the “new federalism” as mere “intellectual cover for state judges she argued that the ing justices have felt increasingly free to vent their feelings about the ing justices have felt increasingly decisi consequences of their colleagues’ as logical fault with their oppone sponded in kind.

960 5 N.W.2d sidesteps this fact by asserting there is a constitutional right to 337 (“The dissent leaves unanswered whether the employees are organize in a collective bargaining unit, but an associating for the purpose of engaging in expressive activity accorded First Amendment protection.”); jority denounced opponents of school vouchers as enablers of MPS’sjority denounced opponents of failure and were for “judicially indefensible” behav- in turn denounced ior and charged with effort to “subvert” the state’s educa- enabling an tional system, was an early example. away from has also provided conspicuous examples consensus, of the trend toward vitriol. The 1992 case provided another example. Justice Diane Sykes tempered her dissent but expressed her case provided another example. Justice Diane In a 2006 feelings more bluntly after leaving the court to become a federal appellate judge. law review article she charged the court with lacking “‘modesty’ and ‘restraint’—the watch- words of today’s judicial mainstream” and of “manifest[ing] a cavalier, almost dismissive attitude” toward precedent.” Diane S. Sykes, tions, the majority thereby avoids any substantive analysis of the Contract Clause.”) (Bradley, analysis of the Contract Clause.”) tions, the majority thereby avoids any substantive J., dissenting). M 39285-mqt_100-3 Sheet No. 149 Side B 06/19/2017 09:53:44 06/19/2017 B No. 149 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 150 Side A 06/19/2017 09:53:44 In One 262 257 and the 260 961 . 367, 381, 390 (2013) The ‘New Federalism’: EV osely-divided de- 261 U. L. R ITY continued to be a leader in continued to be .C Washington’s supreme court KLA A series of cl 259 publicity for the court and disci- Sheriff’s Report Shows Dysfunction in, Pressure , 38 O utional and unjust law,” utional and unjust and that democracy if “is destroyed 258 states, particularly in high-profile cases. cases. high-profile in particularly states, ]. ) 6/12/17) 1:58 PM 263 J., Aug. 26, 2011. ELETE League of Women Voters v. Walker, 2014 WI 97, 357 Wis. 2d 360, D TATE OT OT Gableman Says He Had Date Wrong Bradley Head- in Account of Alleged N .S O IS see also The ‘New Federalism’ (D Madison Inc. v. Walker, Teachers, 2014 WI 99, 358 Wis. 2d 1, 851 N.W.2d J., Sept. 2, 2011; Sandy Cullen, , W DOCX WISCONSIN LAW IN THE AGE OF INDIVIDUALISM AGE OF THE LAW IN WISCONSIN . TATE at 494 (Zarella, J., dissenting). at 526 (Zarella, J., dissenting). at 979. .S INAL IS -F .Id. .Id. .Id. . See, e.g., , W 263. Dee J. Hall, 257. Kerrigan v. Comm’r 957 A.2d 407, of Pub. Health, (Conn. 2008). 454–58, 481 258 259 260. Andersen Cty., 138 P.3d 963, 1012–13 (Wash. v. King 2006). 261 262 Regrettably, Wisconsin’sRegrettably, supreme court M K ANNEY C Y Smack [hereinafter Sykes, on Supreme Court cisions addressing ethics charges against several of its memberscisions addressing ethics charges and the measuresvalidity of several highly controversial Republi- enacted after cans won heated exchanges. regular the 2010 state election elicited the march toward dissensus and vitriol. vitriol. the march toward dissensus and their policy preferences into state constitutional law.”their policy preferences into state constitutional Sykes, Diane S. Justice Confessions of a Former State Supreme Court 2017] morecommon other cases in in gay-marriageThe early examples. provided several cases A majority of Connecticut’s justices, unwilling to limit themselves affirma- to a legal right of gay marriage,tion of the suggestedgay mar- opposition to that riage was interracial marriage. opposition to to earlier analogous 5R majority that her retorted position was “astonishing.” generated similar its state’s DOMA: heat in upholding a dissenter criti- cized the majority “condon[ing] for discrimination blatant against Washington’s “excuse[s]” to “per- and using lesbian citizens” gay and of an unconstit petuate the existence the smugare removed assurances of each age from the democratic pro- cess and written into the Constitution.” dissenter protested that “[i]t is simplydissenter protested conflate opposition to unfair to same marriage sex with bigotry” 851 N.W.2d 302 (same). 337 (upholding 2011 act restricting public employees’ collective bargaining rights); Milwau-337 (upholding 2011 act restricting public employees’ collective bargaining rights); kee Branch of the NAACP v. Walker, 2014 WI 98, 357 Wis. 2d 469, 851 N.W.2d 262 (upholding 2013 voter-ID law); plinary charges against one of the justices,plinary charges against one of the which died after the court deadlocked over them. 2011 rising tensions led to a physical altercation between2011 rising tensions led to a physical two justices, which resulted in substantial negative 39285-mqt_100-3 Sheet No. 150 Side A 06/19/2017 09:53:44 06/19/2017 A No. 150 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 150 Side B 06/19/2017 09:53:44 L. M K , 72 C Y ULSA The The MERICAN 265 , 34 T A 72 N.Y.U. HE People v. An- People v. . 1081 (1985). . 125 (1970); Stan- . 489 (1977). EV ,T EV EV . L.J. 951 (1982); Hans Mosk was nearly .L.R W .L.R .L.R R 268 EX ARBISON ARV , 36 S [100:923 [100:923 . 1141, 1147–50 (1985). Criminal Law and State Consti- , 49 O , 63 T EV The New Jersey Supreme Court: A A. H , 90 H .L.R . 705 (2007). EX EV more broadly than the clause’s more broadly than s as sources of criminal and civil States’ Rights—And Wrongs, INFRED The New Judicial Federalism in Perspective L. R 914–1064 (4th ed. 1970); William J. Brennan, , 63 T by the federal Constitution. ral Constitution, during particularly gh Court would trimgh Court would its recent back &W reting its state’s constitutional clause reting its state’s State Constitutions as Separate Sources of Fundamental UTGERS ed use could lead to unintended conse- ed use could lead to unintended Shirley S. Abrahamson, ELLY not originate with Brennan—in with originate not Reincarnation of State Courts The Rehnquist Court and State Constitutional Law the federal Bill of Rights. , 60 R see G. Alan Tarr, EVELOPMENT D affirmatively seek to give their states’ bills of see ) 6/12/17) 1:58 PM B. New The Federalism H. K Linde took an openly activist position, arguing Linde took an openly activist position, —but Brennan’s article attracted national atten- MARQUETTE LAW REVIEW MARQUETTE ELETE 267 . 707 (1983); Deborah T. Poritz, D note 267; Stanley Mosk, In 1977 Warren’s William colleague Brennan sug- 266 note 264; EV OT OT LFRED 264 but Abrahamson was more cautious. She felt that the N note 267; RIGINS AND O supra . 1097 (1997). L. R 269 supra A O (D EV supra TS Marie L. Garibaldi, :I L. R DOCX . Shirley Abrahamson, Mosk, Mosk, See UTGERS State Constitutionalism: Both Liberal and Conservative INAL WithoutUnconstitutional Law in Oregon ‘Due Process’: AME -F .See .See . See, e.g., (1972), California’s supreme (1972), California’s court had struck down existing D , 35 R 266. People v. Anderson, 493 P.2d 880 (Cal. 1972). 267 268. Linde, 269 265. Brennan, 264 Elements in the judicial also surfaced individualism of expressive . 552, 561 (1997). New Jersey’s supreme court has also been active in the new federalism . 552, 561 (1997). New Jersey’s supreme court has also been active in the new federalism State Constitutions and the Protection of Individual Rights State Constitutions and the Protection of Individual ANNEY OTRE ONSTITUTION EV derson death penalty laws by interp unusual punishmentagainst cruel and federal counterpart new judicial federalism did federalism did new judicial Leadership Court in Individual Rights that state courts should rights a broader scope than R Rights L.J. 67, 81–82 (1998); Stewart G. Pollock, C 962 5R Jr., N “new federalism” movement. From U.S. 1925 to 1970 the roughly Su- preme and criminalthe scope of civil expanded Court actively proce- by the fede guaranteed dural rights Warren’sChief Justice Earl but after Warren’s tenure (1953–69), retire- ment was concern that the hi there rights extensions. movement. gested in a widely-read supreme article that state that courts could meet their ownrisk by looking to constitution those conferred rights broader than tutions: The Emergence of State Constitutional Law tutions: The Emergence of State Constitutional as enthusiastic, A. Linde, ley Mosk, tion and elicited support from several prominentmost state judges, no- tably California’s Stanley Mosk, Oregon’s Hans Linde and Wisconsin’s Shirley Abrahamson. new federalism could be useful in shoring up civil and criminal proce- dural rights but that unbridl 39285-mqt_100-3 Sheet No. 150 Side B 06/19/2017 09:53:44 06/19/2017 B No. 150 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 151 Side A 06/19/2017 09:53:44 ., . 2061, ONST EV .C ASS .L.R 963 LB Gay-marriage , 76 A 275 . tion, which they were Casey 273 note 269, at 81–82. and several state courts ., art. I, § 12 (1992); Kenneth P. note 273, at 2074–75, nn.102–14. note 273, at 2074–75. 274 ., art. I, § 17 (1998); M In Abrahamson’s view, view, Abrahamson’s In supra e right to interpret their own e right to interpret ONST 270 supra supra ONST .C but voters in California and four reting their constitutions’ bills of LA 272 at least thirteen state courts held that at least thirteen state courts held ohibited other abortion restrictions that ohibited other abortion restrictions 271 note 230, at 1136–39. State Constitutional Law, New Judicial Federalism, and the State Constitutional Law, New Judicial Federalism, note 267; Garibaldi, . 339, 349 (2004). supra EV tly of the federal constitu tly of the federal ) 6/12/17) 1:58 PM supra ., art. I, § 40 (1984); N.J. C .L.R ELETE T D ., art. I, § 17 (1972); F .S OT OT ONST N LEV .C O ONST R Am. Acad. of Pediatrics v. Lungren, 940 P.2d 797 (Cal. 1997) (parental- (D .C Abrahamson, , 51 C AL DOCX WISCONSIN LAW IN THE AGE OF INDIVIDUALISM AGE OF THE LAW IN WISCONSIN C see . Commonwealth v. Colon-Cruz, 470 N.E.2d 116 (Mass. 1984); Dist. Attorney for Shirley S. Abrahamson, ; INAL -F . See .Id. .See .See . See, e.g., Defining Rights in the States: Judicial Activism and Popular Response 273 271 272 270 274. Harris v. McRae, 448 U.S. 297 (1977); Miller, 275 Abortion rights and gay marriage also put a spotlight on the new Most service to the new state courts gave at least lip federalism: to M K ANNEY C Y Suffolk Cty. v. Watson, 1274 (Mass. 411 N.E.2d State v. Mata, 1980); 745 N.W.2d 229 (Neb. People v. LaValle, 817 N.E.2d 341 (N.Y. 2004); 2008); State v. Gerald, 549 A.2d 792 (N.J. 1988); State v. Quinn, 623 P.2d 630 (Or. 1981). Rehnquist Court 2070–71, 2080–83 (2013); Uelmen, of Cent. notice statute struck down on state right-of-privacy grounds); Planned Parenthood N.J. v. Farmer, 762 A.2d 620 (N.J. 2000) (same); N. Fla. Women’s Health & Counseling Servs., Inc. v. State, 866 So. 2d 612 (Fla. 2003) (same); Miller, “[b]oth the proponents and critics of the new judicial federalism critics of proponents and “[b]oth the should for.” wish they what careful be Miller, 2017] for example, areas, in other quences govern- of expansion unwarranted ment’s eminentdomain powers, to problemsand could also lead asso- ciated with uniformity. of national lack 5R would have passed constitutional muster under held that their constitutions pr advocates initially put state constitutions at center stage because of con- advocates initially put state constitutions cerns that the Supreme Court wouldright of gay marriage not find a in federalism. After the Supreme held that the federal equal-protec- Court tion clauses did not compel Congress or the states to cover abortion in publicly-funded health programs, their constitutions did require such coverage, their constitutions did require such other states eventually approved constitutional amendments approved constitutional other states eventually overturn- three justices out voters turned and in 1986 California ing such decisions a perception that the justices wereof office based on “soft” on crime and fit their views.had bent the state constitution to art. XXVI (1982); O rights to prohibit the death penalty, rights to prohibit renounce it would have meantrenounce it would up th giving constitutions independen not willing to do. Actual doctrine was application of the matter,another however. Use sometimes of the doctrine led to backlash: several courts followed California’s lead in interp 39285-mqt_100-3 Sheet No. 151 Side A 06/19/2017 09:53:44 06/19/2017 A No. 151 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 151 Side B 06/19/2017 09:53:44 M K 280 C Y Doe In In 281 In 2004–2005 279 , Vermont’s su- decided shortly decided shortly 278 Baker (2003)—relied state on [100:923 [100:923 (1977), In ion but raised the ire of Jus- 276 the federal Constitution. ed of its “persistent antipathy” federalism, holding in two deci- Goodridge the lockstep approach, to the point the lockstep approach, to the point notwithstanding Justice Abraham- wer, it is unlikely that any state will State v. Doe note 256, at 381, 390. ’ supra , al-procedure fol- cases the court generally (1999), and (1999), ) 6/12/17) 1:58 PM MARQUETTE LAW REVIEW MARQUETTE ELETE untypical. In untypical. D , Baker OT OT N constitutional provisions. constitutional O notes 43–65 and accompanying text. (D State v. Agnello, 226 Wis. 2d 164, 593 N.W.2d 427 (1999) (right against self- (1993) majority the same did for Massachusetts’s equal-protec- The ‘New Federalism 277 DOCX . Given the doctrine’s deep historical roots and its usefulness Given the doctrine’s deep historical Baker v. State, 744 A.2d 864, 886 (Vt. 1999); Goodridge v. Dep’t of Pub. Health, 798 Baker v. State, 744 A.2d 864, 886 (Vt. 1999); INAL Baehr 282 -F . See supra . . See, e.g., Goodridge 282. 2d 1, 863 N.W.2d State v. Luedtke, 2015 WI 42, ¶ 87, 362 Wis. J., 592 (Abrahamson, 280. State v. Knapp, 2005 WI 127, 285 Wis. 2d 86, 700 N.W.2d 899 (Miranda warnings); 281. Sykes, 276 277 278. 78 Wis. 254 N.W.2d 2d 161, 210 (1977). 279 The Wisconsin supreme to the new court’s approach federalism was ANNEY concurring). and not federal and not lowed between approach, finding congruence a “lockstep” state and provisions federal constitutional a moreson’s advocacy of expansive view state rights. of and in subsequent criminand in subsequent incrimination); State v. Guy, 172 Wis. 2d incrimination); State v. Guy, 172 Wis. 2d 86, 492 N.W.2d 311 (1992) (right to be free from v. Kramsvogel, 124 Wis.double jeopardy for criminal offenses); State 2d 101, 369 N.W.2d 145 (1985) (same); Thompson v. State, 83 Wis. 2d 134, 265 N.W.2d 467 (1978) (right to be free from unreasonable search and seizure). State v. Dubose, 2006 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582 (lineups). the court briefly returned to the newthe court briefly returned to the sions that Wisconsin’s embodied constitution a more view expansive of the right against self-incrimination than as a reserve instrument of state po understated but not understated but tion clause. Those decisions attracted little public attent Those decisions attracted little public tice Diane Sykes, who“ex- charged that the court had subsequently posed the ‘new federalism’as mere “intellectual cover for state judges to embed their policy preferences into state constitutional law.” 964 gay-marriage pioneering Constitution,federal the of the each and cases— 5R preme with its decision court supported discussion of the an extensive state’s “common of liberty; concept its distinctive and benefits” clause the after Brennan’s article appeared, the court announced that it reserved article appeared, the court announced after Brennan’s the newthe right to apply federalism appropriate cases but in in to the doctrine, but it has not renounced the new federalism alto- but it has not renounced the new federalism to the doctrine, gether. where Justice Abrahamson has complain recent years the court has returned to recent years the court has returned N.E.2d 941, 953 (Mass. 2003). 39285-mqt_100-3 Sheet No. 151 Side B 06/19/2017 09:53:44 06/19/2017 B No. 151 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 152 Side A 06/19/2017 09:53:44 Let ALE the Y 287 HE . art. VII, § 4 an act that , Dec. 10, 2013, 965 The ‘New Feder- 288 ONST control of the .C IS ENTINEL -pick-their-own-chief- J.-S de facto ILWAUKEE note 256, at 737. note 11, at 1; Christian Schneider, , M It had never attracted attention It had never attracted 283 supra , 284 assigned the position to the court’s assigned the position ey Abrahamson had ascended to the AW L ONCLUSION Reflections, supra sconsin-supreme-court-justices mmediately demoted Abrahamson and se- V. C V. MERICAN wing titular as well as ) 6/12/17) 1:58 PM A ELETE After control of Wisconsin’s Republicans gained note 285. D Patience Roggensack Elected Chief Justice; Shirley Abrahamson Says She 285 OT OT . J. (Apr. 29, 2015), http://host.madison.com/wsj/news/local/govt- T N , 2015 WI Sykes, 42, ¶ 87 (Abrahamson, J., concurring); . art. VII, § 4 (amended 2015); J. Res. 1, 102d Leg., Reg. Sess. (Wis. 2015); supra O .S notes 11, 15–16, 267, 270–71, 280, 283, and accompanying text; T notes 11, 15–16, 267, 270–71, 280, 283, and (D IS ICTIONARY OF ONST D , W Luedtke DOCX .C WISCONSIN LAW IN THE AGE OF INDIVIDUALISM AGE OF THE LAW IN WISCONSIN . Scott Bauer, IS note 256, at 390–93; Sykes, In the process they replaced an automatic selection mechanism, INAL -F .See . See supra 286 288 287. W 286. Schneider, 285 283. State 2015 WI v. Delebreau, 55, ¶ 82, 362 Wis. 2d 542, 864 N.W.2d 852 (Abrahamson, 284. Res. 10 (Wis. J. 1876); J. Res. 1 (Wis. 1877); 1877 Wis. Act 48; W Judicial individualismJudicial 2015 of sorts in early an apotheosis achieved M K ANNEY IOGRAPHICAL C Y Still Holds Post J. Res. 2, 102d Leg., Reg. Sess. (Wis. 2015). The amendment passed by a 53% margin (433,533 votes for, 384,503 against). legislature in 2011 they conceived the amendment,legislature in 2011 they conceived which provided for court’selection of the chief justice by the members, as a meansof giving the court’s conservative court. and-politics/patience-roggensack-elected-chief-justice-shirley-abrahamson-says-she- B lected one of its own members vote, 4-3 as chief justice by a 2017] altogether. the doctrine renounce ever court’s conservative wing i www.jsonline/news/opinion/let-wi b9916014921-235327371.html. 5R Wisconsin Supreme Court Justices Pick Their Own Chief (amended 1877). enacted in a more communitarian age in order to reduce conflicts, with one that gave the court’s members a new means of expressing them- selves. After voters narrowlyratified the amendment in 2015, when Wisconsin voters narrowly amendment a constitutional ratified changing the method of selecting the justice. The old state’s chief method, which had automatically part of an effort to de- been enacted in the 1870s as senior justice, had in the judiciary. crease partisanship J., dissenting); alism’, supra or controversy, and through it Shirl or controversy, and chief justiceship in 1996. Achief justiceship sometime(as in her advocacy individualist opposition her in (as communitarian sometime a federalism), new the of and almostto school vouchers), always presence among a forceful her Abrahamson public, colleagues and the the court through one had led of its most turbulent periods and in some ways had become an emblem of that turbulence. 39285-mqt_100-3 Sheet No. 152 Side A 06/19/2017 09:53:44 06/19/2017 A No. 152 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 152 Side B 06/19/2017 09:53:44 . IS M K 289 C Y , W . 3; of 1821, art. V, § ONST 1763–1847, at 249–50, 259– C but it has not been a [100:923 [100:923 292 and it has been more active ONSERVATISM 293 C definitely, or willdefinitely, the nation’s in- rsification ultimately produce new its recent and controversial hospital- TUDY IN lism through dissensus, but there are :AS ENT K ) 6/12/17) 1:58 PM MARQUETTE LAW REVIEW MARQUETTE ELETE AMES Shirley Abrahamson Drops Lawsuit to Regain Chief Justice Title Shirley Abrahamson Drops Lawsuit to Regain D ,J Wisconsin’s have consistently led the way justices OT OT N 294 but it later attempted to block gay marriage through O 290 ORTON note 38 and accompanying text. notes 65, 85–86 and accompanying text. note 162 and accompanying text. notes 104, 111, 124–25, and accompanying text. note 231 and accompanying text. (D Wisconsin an important pioneered school vouchers, and H 291 DOCX Molly Beck, . INAL -F . See supra . See supra . See supra . See supra . See supra . See HEODORE T 290 291 292 293 294 289 Justice Abrahamson as a member continues court, and the of the lawThe evolution of in Wisconsin other states during the Age and ANNEY . J. (Nov. 10, 2015), http://host.madison.com/wsj/news/local/govt-and-politics/shirley- T OHN innovative form of expressive individualism, abrahamson-drops-lawsuit-to-regain-chief-justice-title/article_12e46c97-7549-5b3c-a7d0- 8d748b4a4d75.html [https://perma.cc/E2MB-C4ZB]. leader in other individualistic movements such as expansion of firearm, hunting, fishing, and gambling rights, equivalency law. equivalency than many states in the movement to restrict women’s ability to choose mostabortion, notably through 61 (1939). Kent and Abrahamson are the only two61 (1939). Kent and Abrahamson are the judges who have elicited their American own constitutional amendments. its DOMA of courts blessing gay marriage and it joined the parade rel- atively late. still/article_76ebef79-7e77-54de-823b-f4fb74f0895d.html [https://perma.cc/B7RA-3KZZ]. [https://perma.cc/B7RA-3KZZ]. still/article_76ebef79-7e77-54de-823b-f4fb74f0895d.html York’s 1821 constitutional convention political Abrahamson was in good company: in New opponents of Chancellor James Kent, a seminal per- figure in early American state law and a provision requiring all judges to retire at haps the greatest American state judge, inserted N.Y. two years later. age sixty, thus forcing Kent from the bench S 966 from challenge court an unsuccessful elicited the former justice. chief 5R creasing economic dive and cultural struggle betweenstruggle expressive individualism that her opposing forces and the Americancareer and Age embodied have of Individualism also con- Willtinues. in the struggle continue frameworks that can accommodate of social and legal consensus and conflicting forces? even celebrate those answer that question. That to does not provide a clear of Individualism a neat linear pattern for the law has not evolved in is not surprising, either within Take Wisconsin or across the states. as an example: it was a lawthe first state to enact gay citizens from protecting its employment discrimination J in expressing judicial individua signs that the adverse publicity thatsigns that the adverse publicity dissensus produced between 2008 to moderateand 2011 has encouraged the court its rhetoric if not the 39285-mqt_100-3 Sheet No. 152 Side B 06/19/2017 09:53:44 06/19/2017 B No. 152 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 153 Side A 06/19/2017 09:53:44 301 and the 300 967 note 265. supra 295 but the gay-marriage ex- 296 rts have moved to the forefront role that state bills of rights have role that state bills nstitution and federal courts as the nstitution and federal Individualism goes forward. Given at least some parts of that field. titutional limits of abortion restriction, note 264, at 913–1063; Brennan, the reciprocal efforts to use state amend- the reciprocal efforts the pivotal role that state constitutions are the pivotal role the legality of voucher programs;the legality of voucher 298 supra 299 , ) 6/12/17) 1:58 PM ELETE D ARBISON OT OT N O &H dual rights; notes 256, 263, and accompanying text. notes 36–38 and accompanying text. notes 103–04, 110–12, 120–22, and accompanying text. notes 126–49 and accompanying text. notes 155–204 and accompanying text. notes 205–47 and accompanying text. (D ELLY the proliferation of state constitutional amendments the proliferation ex- DOCX WISCONSIN LAW IN THE AGE OF INDIVIDUALISM AGE OF THE LAW IN WISCONSIN . K 297 INAL -F . See supra .See . See supra . See supra . See supra . See supra . See supra 295 296 297 298 299 300 301 The evolution of state lawThe evolution does pro- Age of Individualism during the M K ANNEY C Y perience; playing in the resolution of playing in the resolution panding indivi suggest that state constitutions and cou suggest that state constitutions and and will remain there as the Age of the active role that Wisconsin’s lawmakers have played at and judges many that in the coming parts of the battlefield, it is a good bet years they will in the lead on be found 2017] rhetoric. that underlying divisions ideological 5R played in delineating the cons played in delineating less-pivotal but nonetheless importantless-pivotal but nonetheless vide some Expressive clues to the future. individualism won has some of fiercevictories in the face notable it has underscored opposition, and the importance doctrine and of the new-federalism state constitutions of the law.as vehicles for developing to the 1960s civil rights advo- Prior on the federal Cocates relied heavily most promising forums rights for expanding ments,particularly DOMAs and English-only amendments, to cabin expressive individualism; 39285-mqt_100-3 Sheet No. 153 Side A 06/19/2017 09:53:44 06/19/2017 A No. 153 Side Sheet 39285-mqt_100-3 39285-mqt_100-3 Sheet No. 153 Side B 06/19/2017 09:53:44 M K C Y * * * * * *

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