Bill McConkey Is A Principled Citizen

Mike Tate less so.

This news story today does not shock me, as there have been rumors about the lack of deeper convictions when it comes to Mike Tate.  But there is no doubt that Bill McConkey is one of the principled citizens of this state that we all can be proud of.  As such I post this entire article that needs to be read, as it is the best from the political world in Wisconsin today.

McConkey, a father of seven and grandfather of eight, is the man behind the pending challenge to Wisconsin’s constitutional ban on gay marriage that will be heard this fall by the Wisconsin Supreme Court.

Adding to the incongruity of his challenge is McConkey’s deep Christian faith, conservative leanings and, until recently, long association with the Republican Party.

McConkey filed his lawsuit in Dane County Circuit Court in July 2007, eight months after Wisconsin voters passed a statewide referendum amending the Wisconsin Constitution to ban gay marriage and civil unions. He was told at the time that his suit didn’t have a chance, but he didn’t listen.

“I’m not impressed by people,” he says. “I’m too old. I’ve flown on Air Force One. I’ve worked in the White House.”

McConkey, who turned 67 on July 4, is a political science and communications professor at UW-Oshkosh. He’s also a constitutional scholar, mediator, motivational speaker, author of a book on voting behavior and a “semi-trashy, supernatural murder mystery,” and, as of this year, owner of a livestock fencing and watering systems business in Tennessee. Conspicuously absent from his long and varied resume is a law degree. But as he recently told a roomful of lawyers in Milwaukee gathered for a symposium on “Marriage Equality in the Heartland,” his lack of legal credentials has some advantages.

“That gives me a great deal of license in interpreting what the law means,” he said to laughter.

So when faced with what he saw as an egregious, unconstitutional assault on the fundamental rights of Wisconsin’s gay citizens — and a personal attack on his own lesbian daughter — McConkey filed a lawsuit seeking to overturn the ban: “I was outraged as a scholar and a professor but I was energized because it was my daughter.”

At the time, local and national gay rights groups declined to sign on to the lawsuit. Legal observers say caution is always advised in these matters since a court could, if provoked, hand down a broad ruling that would actually set back the fight for marriage equality. But McConkey was undeterred. The legal issues now before the Supreme Court are much more narrow than were originally proposed but, if successful, the effect will be the same: an overturning of Wisconsin’s constitutional ban on gay marriage.

McConkey continues to have skeptics and there are those who consider him an oddball. But Milwaukee attorney Christian Thomas Eichenlaub is grateful that McConkey, once an amateur boxer, threw himself into the ring despite a lack of institutional support.

“You can’t fail if you don’t try,” says Eichenlaub, who worked as a volunteer with Fair Wisconsin, the statewide group that organized opposition to the amendment.

As it turns out, McConkey’s timing is looking a little better these days.

Though much opposition still remains, public support for gay marriage has grown considerably in the last few years, with supporters racking up several victories, most recently in Vermont and Iowa. Gay marriage is now legal in six states:Massachusetts, Connecticut, Iowa, Vermont, Maine and New Hampshire.

Howard Schweber, a professor of law and political science at the University of Wisconsin-Madison, says courts in general are leery of doing something “totally at odds with public opinion.” And politics can play an even greater role when the law under review is unclear.

“This is one of those cases,” Schweber says. “Since the law on its face is not clear, it’s not helpful to simply say ‘refer to the law.’ You have to have some interpretive method for resolving the ambiguity.”

Settled into a table at the Perkins Restaurant on Madison’s east side one sunny June morning, McConkey is remarkably fresh the day after a 12-hour drive from Tennessee, where he and his wife have a second house. The couple live year-round in Bailey’s Harbor, though McConkey also has a place in Oshkosh, where he teaches during the school year.

McConkey is making a brief stop in Madison to visit one of his daughters before proceeding to Milwaukee to participate in a panel discussion on the legal prohibitions on same-sex marriage, organized by the local chapter of the American Constitutional Society, a progressive legal group.

Though he’s already polished off a slice of berry pie, his ears perk up when he hears the waitress tick off a list of muffin flavors. “Did you say lemon poppy?” he says with a grin before ordering one.

McConkey loves to eat and cook and, in general, live large. While at Illinois State University on a track scholarship, he lettered in the sport all four years while taking a full load of courses and working 40 hours a week. He was also married at the time. After college he went straight to graduate school for a master’s degree in social science and he and his first wife had their first child, a girl born on Nov. 3, 1964. It was the same day, he recalls, that Democratic President Lyndon B. Johnson won re-election over Republican Sen. Barry Goldwater.

“I have a Midwest work ethic,” he says, explaining his drive.

Though he fell in love with the study of constitutional law as an undergraduate, going to law school was out of the question at the time. He was poor and already had a family to support. He didn’t go back for his PhD for decades, eventually receiving a doctorate in mass communication from Florida State University in 1994.

Over the years he’s worn many hats. Among them: professor; owner of an advertising company; analyst in the National Security Division of the Office of Management and Budget under former Presidents Johnson and Richard M. Nixon; director of the Division of Energy and Power Development for the state of Alaska; legislative analyst for the Florida Senate Committee on Higher Education; lay Methodist preacher; judge for the World Boxing Association; club boxer; and Illinois field director for Nixon’s re-election campaign in 1972.

Because of his time in Alaska, McConkey was familiar with Sarah Palin, though he didn’t know her personally. But he knew enough, he says, to consider her unqualified to be president. And so when former presidential candidate John McCain chose Palin as his running mate, it was the final straw for McConkey, who at that point severed his long ties with the Republican Party.

“I lost it,” he says. “That just showed a disregard for the American people.”

It was not a decision he made lightly. The McConkey family’s allegiance to the Republican Party dates to the Civil War, when his relatives fought on the side of the Union. “They were Lincoln Republicans,” he says. “That’s how far back it goes for our family.”

The McConkey family’s roots in the country go back to at least the Revolutionary War. Ancestors running McConkey’s Tavern rented boats to George Washington for his famous 1776 crossing of the Delaware River.

Originally from Scotland and Ireland, the family had emigrated to New York, with one branch staying on the East Coast and another heading south and eventually to Illinois.

McConkey grew up in Champaign, Ill. He says it was conservative in the old mold: the help-your-neighbor, work hard and mind-your-own-business, way.

Not, he adds, “this new neo-con theocratic nonsense that permeates the Republican Party.”

His father, an Illinois state trooper, was killed at 32 while on duty. It was 1950 and McConkey was just 8. Despite the family’s great loss, his mother never let her children harbor bitterness about anything.

“We were taught not to hate,” McConkey says. “We were not even allowed to say we don’t like beets. We’d have to say, ‘No thank you. I don’t care for any at this time.'”

He was raised Christian and to this day is a man of deep faith. He recalls a great uncle of his, a preacher, asking him a couple of years after his dad’s death whether he still believed in God.

“Yes, I believe in God but more importantly he believes in me,” he told his uncle. “If you live your life so God approves of what you’re doing, you won’t have any problems.”

McConkey was recently asked to speak about his lawsuit at UW-Oshkosh. As the discussion moved forward, he sensed fear in the room among the young gay men, many of whom were not out to their parents. It bothered him. “These are 20-year-old men who should be at the top of their life and instead they’re intimidated,” he says.

McConkey says he understands their fear and feels compelled to act in their stead. “I believe to my very core that people who are not afraid should fight for those who are. And what I hope I’ve done with this case, whether I win or lose, is give more people the courage to fight things when they’re wrong.”

The daughter who inspired McConkey’s lawsuit declined to be interviewed for this article. McConkey says she’s a private person and was not interested in filing her own legal challenge. “It’s just not her personality,” he says. But McConkey says she is supportive of his lawsuit.

McConkey first started thinking of filing a lawsuit even before the measure made it to the ballot. But when he informed Mike Tate, then executive director of Fair Wisconsin, of his intentions, Tate visited him in Door County to talk him out of it, believing it was not the right strategic move. He thinks Tate, now chairman of the Wisconsin Democratic Party, had ulterior motives.

“He was interested in the re-election of Gov. Doyle and he didn’t want to chance this getting kicked off the ballot,” asserts McConkey. “He was not interested in the plight of gays and lesbians in this state at all.” The referendum is believed to have motivated liberals to go to the polls — helping to seal victories for Doyle and other Democratic lawmakers — as much as or more than the evangelical voters at whom it was aimed.

“Did he really say that?” Tate says incredulously, when asked about McConkey’s charges. “Nobody wanted the amendment on the ballot, myself included,” he says. “I know Fair Wisconsin looked at all available possibilities and they settled on putting their energy toward defeating the referendum because the possibility of success in the courts was not very high.”

“We were in the thick of the campaign at the time,” Tate adds. “All that a lawsuit would have done at the time is distract  time, energy and money away from the sole goal, which was defeating the amendment.”

McConkey held off on the lawsuit, something he still regrets. But after the referendum passed in November 2006, he started thinking again about legal action. He once again asked Fair Wisconsin to join him and also put a call in to Lambda Legal, the national gay rights organization that most recently brought the case that legalized same-sex marriage in Iowa.

Neither group wanted in.

“I didn’t care,” McConkey says. “I was fighting for my daughter.”

Christopher Clark, an attorney in the Chicago office of Lambda Legal, says he cannot comment on confidential conversations his group has had with people seeking legal advice. Katie Belanger, who recently became executive director of Fair Wisconsin, says her group was regrouping after its expensive and ultimately unsuccessful campaign to defeat the amendment and decided to focus its attention on seeking domestic partner protections for same-sex couples. As she points out, even if the constitutional amendment is overturned, there’s still a state law on the books that prohibits same-sex marriage.

Both Fair Wisconsin and Lambda are reviewing the case now, however, to determine whether they will seek to submit briefs to the state Supreme Court in support of McConkey.

“We definitely are supportive of the suit,” says Belanger. “The amendment is something Fair Wisconsin fought very hard against and something we think was a wrong step for Wisconsin.”

While it’s true that groups like Fair Wisconsin and Lambda Legal and just about everybody else underestimated the potential of McConkey’s challenge, there were reasons for a bit of skepticism, starting with the over-the-top news release he sent to media the day he filed his lawsuit in Madison. “If I fail to make it to the court in time it will be because of an act of catastrophic proportions,” he wrote. “I plan to file this in Dane County Circuit Court before noon, approximately 10:30 a.m.”

In his July 27, 2007, complaint, McConkey challenged the amendment on substance and procedure, claiming it violated the so-called “single subject rule” pertaining to referendums. He said the referendum illegally asked two questions in one — whether to ban same-sex marriage and whether to ban civil unions.

Attorney General J.B. Van Hollen and Gov. Jim Doyle were listed as defendants, though Doyle was later dismissed as a party to the suit.

The circuit court ruled in September 2007 that McConkey, because he was not gay, did not have standing to challenge the substance of the amendment, but allowed him to proceed with his challenge to the procedure. At this point, prominent Madison attorney Lester Pines contacted McConkey and offered to represent him pro bono. In November 2007, the court rejected a motion by Van Hollen to dismiss the procedural challenge.

(The issue of standing, which has again been raised by the defense and will next be decided by the Supreme Court, continues to mystify McConkey: “If I have no standing, how is it that straight married people got to vote on the amendment?”)

Pines says he offered his help to make it a fair fight. “When confronted with really sophisticated legal issues it becomes almost impossible for a lay person to adequately make a case legally,” says Pines. “The train had left the station,” he adds.

“Either we were going to be on the train or watch it go down the tracks.”

Both parties briefed the circuit court on the single subject rule challenge and on May 30, 2008, the court ruled against McConkey on his procedural challenge. Pines appealed the decision and Van Hollen cross-appealed on McConkey’s standing to bring the challenge. On April 9, 2009, the Court of Appeals referred the case to the Wisconsin Supreme Court, saying it presents “several novel issues” and was a matter of “significant public interest with statewide implications.” The Supreme Court subsequently agreed to hear the case.

When the Court of Appeals issued its ruling, Julaine Appling of the Wisconsin Family Council, which led the campaign to pass the gay marriage ban, intimated in a news release that the justices were swayed by gay marriage victories in other states.

“Two days after a state Supreme Court election and not even a week after Vermont’s legislature and Iowa’s Supreme Court legalized ‘same-sex marriage’ in those states, a Wisconsin Court of Appeals referred the case challenging Wisconsin’s Marriage Protection Amendment to the state Supreme Court. Coincidence? We may never know, but we cannot ignore the events of the last week and their potential impact on this decision.”

In a January web posting on McConkey’s lawsuit, Appling assured her followers that her group would not rest as long as “Satan and his minions” are around. “The good fight is a daily battle to glorify Christ on earth through our Christian witness, by being salt and light in a dark and dying world. Supporting God’s design for the institution of marriage is simply one of the battles we’re fighting right now.”

The Satan reference, given his own Christian faith, amuses McConkey, who said he thinks a lot these days about those he calls “matrons of hatred.”

They’re the politicians who use hate to get votes and preachers who use it to raise money. It’s the subject, in fact, of his next book, whose working title is, “Why I Fight: The Battle Against Hatred In America.”

McConkey says the most hateful e-mails he has received about his lawsuit have come from individuals who use the Bible to justify their disapproval of homosexuality. He sees the same irony in conservative Christian church opposition to national hate crime legislation.

“If Jesus is coming back he’d better hurry,” says McConkey. “These people are ruining his name.”

3 thoughts on “Bill McConkey Is A Principled Citizen

  1. My view from Madison is Mike Tate is one hell of guy and we’re lucky to have him. I think you are way off on Tate.

    I salute McConkey, and I admire him as you do, but I have been working in civil rights a pretty long time and no one whom I know wanted that POS amendment on the ballot.

    It was placed on the ballot with exclusive Republican support and Fair Wisconsin worked their asses off to defeat it. That it backfired on the GOP was ironic, not planned or desired by Mike Tate, the Democratic Party or civil rights workers.

  2. Fair Wisconsin’s ads were well-meaning but confusing. A nonzero number of young liberal voters in Madison (who later whined about it on various social networking sites) voted for the amendment because they were misled by the ads into thinking that Fair Wisconsin was anti-gay (because of the “NO special rights” mantra). Since Fair Wisconsin was trying to defeat the amendment, these well-meaning but attention-deficient citizens voted “Yes”. Fair Wisconsin gets an “A” for effort but a “D” for efficacy. I think McConkey is better off without their advocacy (or that of the Human Rights Campaign).

  3. So, I have a burning question. First allow me to establish the context:

    In 2006, it was clearly established and recorded in the media that the intent of the amendment was to ban look-alike marriage and not to ban partner benefits. So it can be interpreted that the amendment did pose one question: Shall we ban look-alike marriage?

    Wisconsin is about to have a domestic partner registry and grant basic legal protections and benefits to qualified same-sex couples. Supporters of the amendment are now (not surprisingly) planning to challenge the registry. Some claim it may be unconstitutional due to the amendment.

    So my question is this:

    If the amendment supporters get their way and successfully eradicate the 43 basic rights from qualified same-sex couples, then does this establish that the intent of the amendment was to ban look-alike marriage and ban partner benefits?

    In other words, if they get their way does the amendment suddenly no longer pose a single question:

    Shall we ban look-alike marriage?

    Shall we ban partner benefits?

    Just a thought!!

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