Dan Kelly opposed marriage equality ruling and supported anti-LGBTQ groups

Will Fritz

The conservative candidate for the Wisconsin Supreme Court has long been vocal about his opposition to same-sex marriage and the ‘damage’ recognizing it could have.

Dan Kelly, the conservative candidate for the Wisconsin Supreme Court, has a history of questioning LGBTQ rights and has long-standing ties to anti-LGBTQ organizations.

Kelly previously served on the state Supreme Court when he was appointed by then-Gov. Scott Walker in 2016 to fill the remainder of former Justice David Prosser Jr.’s term. He lost the election for a full term in 2020 to current Justice Jill Karofsky. Kelly is now taking another shot at running for Supreme Court, contesting Milwaukee County Judge Janet Protasiewicz to fill the seat of retiring Justice Patience Roggensack.

Kelly has publicly opposed same-sex marriage for several years.

“We, today, no longer have a democracy, much less a republic,” Kelly wrote in a 2015 blog post decrying the U.S. Supreme Court’s ruling in Obergefell v. Hodges, which legalized same-sex marriage across the nation. Kelly wrote that he agreed with the conservative justices’ dissents in the case.

“Justice [Antonin] Scalia said the Court’s opinion (in Obergefell v. Hodges) was ‘a naked claim to legislative – indeed, super-legislative – power; a claim fundamentally at odds with our system of government. . . . . A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy,’” Kelly wrote. “Justice [Clarence] Thomas sees it too. He recognized that the Court declared its independence from, and mastery over, we who created it: ‘This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic.

“This is the fragility of our system, the powerlessness of our words,” Kelly continued. “All it took for our constitutional order to dissolve was the discovery by a handful of lawyers that they don’t really need to submit to the words of law. And so the Court is now our Ruler, and we its subjects.”

He went into much more detail on his views in his 2016 application for the state Supreme Court appointment he ultimately received, spending approximately seven pages discussing “the institution of marriage so that we may observe the damage consequent to assuming that ‘sameness’ in our societal institutions is more important than the objective realities they were meant to address.”

In that application, Kelly wrote that it’s his belief the state’s sole reason for involvement in marriage is the possibility of reproduction. Therefore, he sees no point in allowing same-sex couples access to the same rights their opposite-sex peers have.

“The government’s legitimate interest in marriage stems from our understanding that if Tom and Sarah get together, they might just produce a child,” Kelly wrote. “And if they do, someone has to care for the wee little one. That’s an obligation the parents owe to the child, and it is a right the child may legitimately demand his parents respect. It’s also an obligation the parents owe to the rest of society.”

Kelly — who had never been a judge prior to his 2016 appointment to the Wisconsin Supreme Court — has also worked with or received support from multiple anti-LGBTQ groups.

He served as the Milwaukee chapter president of the Federalist Society, the conservative legal group that played host to U.S. Supreme Court Justice Samuel Alito’s 2020 speech criticizing same-sex marriage, and published articles questioning both marriage equality and California’s ban on conversion therapy on its website.

He was previously a member of an advisory panel for the Wisconsin Institute of Law and Liberty, which has backed at least four pending anti-LGBTQ lawsuits as of October targeting things like school gender identity policies and a conversion therapy ban.

Kelly has received praise from the institute, with the organization’s president, Rick Esenburg, writing in 2016 that Kelly “is more than ‘competent’ and, like many of the others who applied for this vacancy, strongly qualified for the Court.”

The justice candidate’s association to the Wisconsin Institute for Law and Liberty has continued, with a 2022 financial disclosure showing him as a contractor for the Institute for Reforming Government, an offshoot of the organization.

Kelly has also been endorsed by the Wisconsin Family Action PAC, which opposes same-sex marriage and describes itself as “the state’s only conservative pro-family PAC”.

“Justice Dan Kelly has everything we look for in a judge, especially for our state’s highest court,” Wisconsin Family Action PAC Director Julaine Appling said in a January press release.

Kelly’s campaign did not respond to a request for comment from the American Independent Foundation.

Published with permission of The American Independent Foundation.