"The Wisconsin Supreme Court raised the prospect Wednesday of striking down part — but not all — of a law that gives same-sex couples some of the rights of those who are married."

At yesterday's oral argument.

... Austin Nimocks, an attorney for the plaintiffs, argued domestic partnerships mirror marriages and thus aren't allowed under a 2006 amendment to the state constitution that bans gay marriage and any "legal status identical or substantially similar to marriage."....

Justice Patience Roggensack noted it is rare for the court to strike down a statute in its entirety, rather than just the parts that violate the constitution. That prompted a discussion about whether the court could take out the elements of the registry law that require people to be of the same sex and not closely related.

If the court were to go that route, gays could remain in domestic partnerships, but heterosexual couples would now get the chance to form them. Family members could also enter into them, such as a woman who took care of her sick grandmother.

I haven't seen the transcript of the argument, and I can't tell if this was merely a device to open up the analysis or a real option under consideration, but it strikes me as profoundly anti-democratic for judges to rewrite a statute like that. It would be an interesting legislative innovation to allow domestic partnerships for any 2 co-habiting individuals who would like access to government benefits as a legally recognized couple. But that ought to be something the people have had some chance to contemplate and about which to have some representation in the legislature.

I support same-sex marriage and I opposed that 2006 amendment to the state constitution, but the amendment is what it is, and it seems as though the court is confronted with a statute that probably violates that constitutional amendment. I understand the urge to resist that unpleasant conclusion, but statutory and constitutional texts need to be taken seriously.

The people who oppose same-sex marriage are cynical enough already about whether texts are interpreted fairly and whether majoritarian preferences count against elite opinion anymore.