Domestic Partnerships &
Same-Sex Marriages (SSMs) in Wisconsin

Part 3: 2014-JUN:
Court rules SSM ban unconstitutional.
Lack of consensus about SSM legality.
Confusion reigns.

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This topic is continued from the previous essay

2014-JUN-06: District Court issues ruling overturning Referendum 1:

On Friday, 2014-JUN-06. U.S. District Judge Barbara Crabb issued an 88 page decision in the case Wolf v. Walker. ₇ She declared Referendum 1 -- which inserted a ban on civil unions and same-sex marriages into the Wisconsin Constitution in 2006 -- to be unconstitutional. Along with over a dozen similar court decisions in other states since mid-2013, she determined that the ban violated the due process and equal protection clauses of the 14th Amendment to the U.S. Constitution. Those clauses require both the federal government and state governments to treat people equally. By extension, this means that couples must also be treated equally. Thus, if opposite-sex couples can marry, then same-sex couples should be able to as well. She wrote:

"Quite simply, this case is about liberty and equality, the two cornerstones of the rights protected by the United States Constitution." ₁

She did not stay her ruling. Also, she did not issue specific orders to county clerks to start issuing marriage licenses to qualified same-sex couples. Her decision did not require the state to register the resultant marriages. Instead, she asked the plaintiffs to tell her by Monday, JUN-16, what they wanted done to enforce her decision. She would then decide whether to issue a stay while her ruling was appealed to the 7th U.S. Circuit Court of Appeals.

There was no consensus at this point on whether it was legal for same-sex couples to marry in the state:

• Apparently working on the belief that one loving, committed, and married same-sex couple in Wisconsin is one too many, Attorney General J.B. Van Hollen (R) promised to appeal the District Court's decision. He said that the:

  "... current law remains in force. ... The United States Supreme Court, after a referral from Justice (Sonia) Sotomayor, stayed a lower court's decision striking down Utah's ban on same-sex marriage. There is no reason to believe the Supreme Court would treat Wisconsin's ban any differently." ₁

• Scott McDonell (D), the Dane County Clerk, started issuing licenses at 5 PM on the day that Judge Crabb issued her ruling. Officials from the state Department of Justice (DOJ) advised him to cease and desist, But McDonell said that the DOJ:

  "... don't get to tell me that. A judge gets to. ... If someone comes to me, how could I say no to them?" ₁

• Joe Czarnezki (D) , the Milwaukee County Clerk, issued marriage licenses through Friday night and planned to do so again on Saturday. He said:

  "Personally, I'm pleased she struck the ban down. It makes us proud to be in Wisconsin and a state that's standing up for marriage equality." ₁

• Chris Abele (D), of the Milwaukee County Executive, said that he would personally pay for the overtime costs to keep the courthouse open. The annual PrideFest was being celebrated at this time in Milwaukee. The crowd attending the celebration erupted in cheers when Abele announced the extended hours. ₁
  
  
• Perry Kaluzny, who was attending PrideFest, said that the Judge's decision was liberating. He said:

  "This is a wonderful thing, and hopefully this will mean marriage one day for me." ₁

By the evening of the District Court decision, same-sex couples were being married in the Milwaukee courthouse and on the street outside the Dane County clerk's office. They were surrounded by cheering crowds. Drivers of cars passing the scene honked their horns. However, religious and social conservatives in the state did not generally share the joy of the majority.

2014-JUN-07: Lack of consensus over the status of same-sex marriage (SSM) in Wisconsin:

U.S. District Judge Barbara Crabb issued her ruling on Friday, JUN-06 declaring that Referendum 1 -- the constitutional amendment that prohibited same-sex marriages and civil unions -- to be unconstitutional on the usual grounds that it violates the 14th Amendment to the U.S. Constitution which is the highest law of the land. Such a ruling normally means that Referendum 1 is null and unenforceable. That would imply that same-sex marriages are at least temporarily legal, pending an appeal of Judge Crabb's ruling. Same-sex engaged couples, who were anxious to marry and were prepared for such a ruling, flooded their county offices to obtain marriage licenses. However, only Dane and Milwaukee County Clerks initially issued licenses to same-sex couples.

• Carl Tobias, a law professor at the University of Richmond praised Judge Crabb's ruling but criticized its lack of clarity on whether marriages by same-sex couples could begin immediately. He said:

  "What's clear is they're in limbo (for now). What's not clear is what the courts will do ultimately. It's a mess." ₁

• Tamara Packard, a Madison attorney who was not involved in this case, said:

  "I think the clerk should comply with the declaration of unconstitutionality — we have a constitutional right [to marry]. I think [that Judge Crabb has] ... declared what the law is and the clerks are required to follow the law. Whether there's an order saying you must issue, I don't think that's very relevant." ₁

• Larry Dupuis is the ACLU of Wisconsin's legal director and the attorney for the eight plaintiffs. He said that the District Court's ruling was different from other recent decisions by District Courts in other states. Judge Crabb struck down Wisconsin's constitutional ban against same-sex marriage but did not issue an order that specifically instructed county and state officials on how to respond. ₁
  
  
• Alan R. Madry, a professor at Marquette University Law School, confirmed that the U.S. Constitution is the highest legal authority in the country. It takes precedence over any sections of the Constitution of Wisconsin or of the Constitution of any other state. This contradicts many recent statements by some religious and social conservatives who believe that the referendum passed by Wisconsin voters to ban SSM was the highest authority in the state, even if it violates the U.S. Constitution.
  
  Professor Madry noted that many District Court judges in various states had declared unconstitutional sections of state constitutions related to marriage since mid-2013. He wrote:

  "It is breathtaking that the federal courts would be moving. ... so rapidly. That would not have happened 15 or 20 years ago. The constitution is obviously alive and growing." ₁

The clerks in the Democratic strongholds of Milwaukee and Dane Counties were the first to issue marriage licenses to same-sex couples on Friday, JUN-06. But by the afternoon of Tuesday, JUN-10, 50 of Wisconsin's 72 counties were routinely granting licenses to same-sex couples. ₂ That number was growing.

Craig Gilbert, writing for the Journal Sentinel, said:

"... very quickly, the list of counties marrying gay couples has grown to be a long and politically diverse one, ranging from big to small, urban to rural, and very blue to very red. ..."

Those 50 counties are home to three out of four Wisconsin voters. They include not just populous urban counties along Lake Michigan but rural counties in every region of the state, including the three most sparsely populated counties in Wisconsin (Iron, Florence, and Forest). 

They include the state’s 12 most Democratic counties (based on the 2012 presidential vote). But they also include seven of the 12 most Republican counties. Most notable among them: Waukesha, the most Republican County of its size in America." ₂

2014-JUN-09: How long will it take to resolve the confusion over same-sex marriage?

Former Wisconsin Supreme Court Justice Janine Geske said that a final decision for marriage equality in Wisconsin would likely take years:

"Generally, the validity of marriages are by a state court system and so it probably would be a circuit court judge, then a court of appeals, and then ultimately, the Wisconsin Supreme Court. That`s generally where the validity of marriages are determined." ₈

However, in Wisconsin, the lawsuit was filed in federal court. Justice Geske continued:

"It's obviously going to appealed to the United States Supreme Court, unless the court has already done something, and that`s gonna take substantially more time. So we're looking at more than a year or two years before this issue is finally resolved." ₈

However, a few other legal specialists are more optimistic. They note that several marriage equality lawsuits have already been decided at the federal District Court level, and are being considered by various U.S. Circuit Courts of Appeal. Others were filed in state circuit courts and might make their way quickly to state Supreme Courts. If the federal Courts of Appeal and state Supreme Courts issue their rulings quickly, then some might already be appealed to the U.S. Supreme Court during the Fall of 2014. Since all of the lawsuits are essentially identical, it might only take one or two cases to be appealed to the Supreme Court before that court could conceivably grant certiorari -- agree to accept one or more appeals. That might happen by the end of 2014. The court would then probably hold hearings in 2015-MAR, and issue their ruling in 2015-JUN.

If this schedule pans out, it is possible that the U.S. Supreme Court could possibly issue its ruling on Friday, 2015-JUN-26. This would be:

• The second anniversary of their decision in Windsor v. United States. That was the ruling that kick-started many dozens of lawsuits seeking marriage equality in dozens of states.
  
  
• The 12th anniversary of the U.S. Supreme Court's decision in Lawrence v. Texas which decriminalized same-gender sexual behavior across the U.S.
  
  
• The 48th anniversary (plus two weeks) of the U.S. Supreme Court ruling in Loving v. Virginia which legalized interracial marriage across the U.S.

If they decided in favor of same-sex marriage across the entire U.S., then for those who celebrate marriage equality, JUN-26 could be a wonderful opportunity to celebrate the victories of separation of church and state, freedom of religion, acceptance of sexual minorities, and the victory of the Golden Rule over the religious freedom to discriminate. Of course, for those who value limiting marriage to one woman and one man, it would be a date to remember a tragic descent by the nation into immorality and sexual degeneracy, and a defeat of true faith by secularism.

This topic is continued on the next page

Reference used:

The following information source was used to prepare and update the above essay. The hyperlink is not necessarily still active today.

1. Jason Stein, et al., "Federal judge overturns Wisconsin's gay marriage ban," Milwaukee Journal Sentinel, 2014-JUN-07, at: http://www.jsonline.com/
2. Craig Gilbert, "County decisions reflecting shifting politics of gay marriage," Journal Sentinel, 2014-JUN-11, at: http://www.jsonline.com/
3. Jason Stein & Patrick Marley, "State changes course, says it is processing gay marriage paperwork," Milwaukee Journal Sentinel, 2014-JUN-11, at: http://www.jsonline.com/
4. Jason Stein, "Sen. Glenn Grothman criticizes state for taking gay marriage licenses," Journal Sentinel, 2014-JUN-12, at: http://www.jsonline.com/
5. Daniel Bice, "Scott Walker declines to define stand on gay marriage today," Journal Sentinel, 2014-JUN-12, at: http://www.jsonline.com/
6. Patrick Marley & Dana Ferguson, "Van Hollen: Clerks issuing licenses to gay couples could be charged," 2014-JUN-12, at: http://www.jsonline.com/
7. Text of Wolf et al, v. Walker. "Federal judge overturns Wisconsin's gay marriage ban," Journal Communications, 2014-JUN-06, at: http://media.jrn.com/

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First posted: 2014-JUN-12
Latest update: 2014-JUN-15
Author: B.A. Robinson