A man trying to overturn the gay marriage ban was allowed to proceed with his case against the state Wednesday.
Dane County Circuit Judge Richard Niess ruled that Bill McConkey had the right to sue the state, ruling against the motion for dismissal the state sought, according to McConkey's attorney Lester Pines.
Pines said the judge ruled McConkey had the legal standing to pursue the case, meaning the case legally affected him.
According to Pines, when a dismissal is filed, a judge must presume the plaintiff, McConkey in this case, is making true allegations.
Pines said McConkey is trying to prove that the constitutional amendment, as it was submitted to the voters, violated Article 12 Section I of the Wisconsin Constitution.
Article 12 Section I states, according to Pines, that the Legislature must submit referendums to the voters separately. The amendment passed last fall posed two questions, Pines said.
The amendment says that marriage only between one man and one woman would be recognized in the state. It also states that legal status similar or identical to marriage would not be recognized.
The amendment passed by 59 percent last year, though a majority of Dane County voted against it.
Pines said both sides could appeal the case after the circuit court ruled, but the case was still a long way from being heard by the state Supreme Court, which he said might not decide to rule on it.
Assistant Attorney General Thomas Balistreri, who argued for the state Wednesday, said he was not authorized to speak to the press on the case.
The state's attempt to dismiss the case was accompanied by a friend-of-the-court brief filed by the Wisconsin Family Council, according to the Wisconsin State Journal.
WFC tried to pass the amendment for three years before November 2006, according to WFC project coordinator Judith Brant.
Brant said the ruling, as well as in arguments from Balistreri, disappointed WFC.
According to Brant, the amendment was constitutional and a technical issue like the one discussed on Wednesday would have been noticed in the three years the referendum spent in the Legislature.
Brant also said there was precedent in favor of the amendment being constitutional, since a similar case involving an amendment in Kentucky upheld a referendum based on the Wisconsin amendment.
UW-Madison Law Professor Donald Downs said if the Wisconsin Supreme Court did eventually hear the case, it could rule the amendment violated the U.S. Constitution.
Former Chair of Students for a Fair Wisconsin Eli Judge said the ruling was hopeful.
I'd say this case is the first step to something incredible,"" Judge said.
