Dane County Circuit Judge David Flanagan said despite his belief that the state benefits practice is not constitutional, he was nonetheless bound by a 1992 state appellate decision upholding their validity.
“This court cannot simply ignore that precedent and, therefore, must dismiss this action,” Flanagan wrote, in the 46-page ruling. “But for the controlling authority (in the earlier case), however, this court would find that the plaintiffs have proven that the state law provisions which preclude equal treatment as to sick leave, health insurance and family leave deny to the plaintiffs equal protection of law and, thus, are in violation of Article 1, Section 1 of the Wisconsin Constitution.”
“Losing doesn’t get any better than this,” said Larry Dupuis, Litigation Director of the ACLU, in a news release about Flanagan’s ruling. “We knew we had an uphill battle in the trial court because of the earlier case. But the court agreed with us that discrimination based on sexual orientation should be subject to strict judicial review and that it is unconstitutional for the state to deny equal benefits.”
According to the ACLU news release, it filed the lawsuit in April 2005 on behalf of six lesbian state employees and their partners, alleging it was a violation of the state’s equal protection guarantees to deny homosexual state employees access to the same health insurance and family leave protections that it provides to heterosexual employees who are able to cover their spouses.
More information about Dunnum v. Department of Employee Trust Funds is available here .