Domestic Partnerships &
Same-Sex Marriages (SSMs) in Wisconsin
Part 5: 2014-JUN:
District Court Judge Barbara Crabb issues stay.
Attorney General plans appeal.
More webmaster's comments:
There seems to be a certain vagueness expressed by Governor Walker and Attorney General J.B. Van Hollen concerning the topic of constitutions. Governor Walker mentioned that: "It's in the constitution" without defining whether he is referring to the state or U.S. Constitution. Attorney General Van Hollen says that his main oath and obligation is to defend "our constitution above our laws." Again, he does not define to which Constitution he is referring. When he speaks of "our constitution" is he speaking as a resident of Wisconsin or as a citizen of the United States?
Chapter 19 of the Wisconsin Legislative Documents contains a discussion of the "General Duties of Public Officials." Section 19.10 discusses oaths of offices. It says that the governor and Attorney General will take an oath of office before entering upon the duties of office. 1
Article IV, Section 28 of the Wisconsin Constitution states that:
"Members of the legislature, and all officers, executive and judicial, except such inferior officers as may be by law exempted, shall before they enter upon the duties of their respective offices, take and subscribe an oath or affirmation to support the constitution of the United States and the constitution of the state of Wisconsin, and faithfully to discharge the duties of their respective offices to the best of their ability. 2 [Emphasis by us]
Unfortunately, their oath does not explain how government officials are to handle instances where the U.S. Constitution and the Wisconsin Constitution are in conflict. Here, the Wisconsin Constitution bans same-sex marriages. Over a dozen District Court judges in as many states have declared bans of same-sex marriages unconstitutional because the due process and/or equal protection clauses in the 14th Amendment of the U.S. Constitution requires same-sex couples and opposite-sex couples to be treated equally. Further, District Courts have indicated that the federal Constitution takes precedence over the state Constitutions where the latter violates the former. That is, neither group of couples must be able to marry or both must be able to marry.
I hope that some reporter will interview the Governor and Attorney General, point out the content of their oath of office, and ask them what they feel their duty is in cases where the federal and state Constitutions are in conflict.
2014-JUN-13: District Court Judge Crabb issues stay:
Judge Crabb had ruled in favor of the plaintiffs in Wolf v. Walker on JUN-06. She declared Referendum 1 which had banned both civil unions and same-sex marriages in Wisconsin, to be unconstitutional. She had asked that the plaintiffs and defendants file "supplemental materials regarding the content of the injunction" that should be issued. 3
The plaintiffs filed a seven-paragraph proposed injunction that would:
- Require state officials to ignore the amendment added to the Wisconsin constitution by Referendum 1 and state statutes that prohibited same-sex marriages;
- Require officials to issue marriage licenses to all qualified opposite-sex and same-sex couples;
- Require officials to "accept for registration, assign a date of acceptance and index and preserve original marriage documents and original divorce reports" for same-sex couples as they do for opposite-sex couples.
- Require officials to recognize same-sex couples married in Wisconsin or in other jurisdictions in the same way that they recognize opposite-sex couples married in the state or out-of-state.
- Require officials to "provide the same state law rights, protections, obligations and benefits of marriage that are provided to different-sex couples." 4
The plaintiffs subsequently filed a new paragraph that would prohibit officials from prosecuting any county clerk who had issued a marriage license to a same-sex couple or prosecuting an officiant for solemnizing a marriage by a same-sex couple.
Judge Crabb noted in her Opinion:
"After seeing the expressions of joy on the faces of so many newly wedded couples featured in media reports, I find it difficult to impose a stay on the event that is responsible for eliciting that emotion, even if the stay is only temporary. Same-sex couples have waited many years to receive equal treatment under the law, so it is understandable that they do not want to wait any longer.
"A federal district court is required to follow the guidance provided by the Supreme Court. Because I see no way to distinguish this case from Herbert, I conclude that I must stay any injunctive relief pending appeal." 4
"Herbert" refers to a District Court case in Utah very similar to that in Wisconsin in which the U.S. Supreme Court ordered a stay.
Post Crescent's article on this development is titled simply: "Judge halts gay marriages but orders equal rights." 5
About 550 same-sex couples were able to marry before the stay was implemented. The legal status of their marriages was unknown at the time. It wasn't until 2014-OCT when same-sex marriages were legalized in Wisconsin that these 550 couples would know that their marriage was valid
Associated with the article is a reader poll titled: "It's what everyone's talking about." They asked for feedback from readers about same-sex marriage in Wisconsin, and offered three answers:
- 62% chose: "It's a complete mess."
- 24% chose: "Change can be messy, and that's OK."
- 16% chose: "It's gone about as smoothly as it could go." 5
Attorney General J.B. Van Hollen issued a statement on JUN-13 about the stay:
"I am very pleased that Judge Crabb has followed the lead of courts across the country, including the United States Supreme Court, and fully stayed her ruling. By staying this ruling, she has confirmed that Wisconsin’s law regarding same-sex marriage remains in full force and effect.
The state and all of its agencies and subdivisions must follow and enforce Wisconsin’s marriage law. County clerks do not have authority under Wisconsin law to issue same-sex marriage licenses. Judge Crabb’s stay makes this abundantly clear, Van Hollen said. 6
The Wisconsin Department of Justice (DOJ) is expected to appeal the District Court's ruling to the Seventh U.S. Circuit Court of Appeals.
2014-JUN-13: Reactions to Judge Crabb's stay of her JUN-06 ruling:
- Attorney General Van Hollen (R) wrote:
"I am very pleased that Judge Crabb has followed the lead of courts across the country, including the United States Supreme Court, and fully stayed her ruling. By staying this ruling, she has confirmed that Wisconsin’s law regarding same-sex marriage remains in full force and effect. The state and all of its agencies and subdivisions must follow and enforce Wisconsin’s marriage law. County clerks do not have authority under Wisconsin law to issue same-sex marriage licenses. Judge Crabb’s stay makes this abundantly clear." 7
- Chris Larson (D):
"After years of discrimination, many loving, committed couples were finally able to exercise their freedom to marry. Today’s stay of the previous injunction is yet another step to continue on the path towards ending state sponsored discrimination in Wisconsin. As marriage equality spreads across America, we know most of these fights for freedom are won in the court of law." 7
2014-JUN-15: Arguments that the State might use to justify marriage inequality:
Ed Treleven of the Wisconsin State Journal discussed the arguments that Attorney General J.B. Van Hollen might use in the state's appeal to the 7th U.S. Circuit Court of Appeals to uphold the exclusion of same-sex couples from marriage. 7
He noted that Justice Scalia of the U.S. Supreme Court made a comment in the ruling for Windsor v. United States on 2013-JUN-26. This was the ruling that repealed Section 3 of the federal Defense of Marriage Act and required the federal government to recognize same-sex marriages that had been legally solemnized in various states. Many of the arguments used in the majority ruling have since been picked up and used by federal and state judges considering bans against same-sex marriage. Justice Scalia said:
"How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status. No one should be fooled; it is just a matter of listening and waiting for the other shoe."
His prediction has come true. Over a dozen federal and state judges evaluated the constitutionality of state statutes and amendments to state constitution that banned same-sex marriages. To date, all have found the bans to be unconstitutional because they violate the due process and/or equal protection clauses in the 14th Amendment to the U.S. Constitution.
Rick Esenberg, a lawyer and president of the conservative Wisconsin Institute for Law and Liberty, suggested some arguments in favor of SSM bans:
- That the 14th Amendment which was passed in the 1860s was not intended to cover same-sex couples.
- That sexual orientation "... should not be subject to the same level of judicial scrutiny as gender"
- The slippery slope argument: if a state extends marriage to same-sex couples then there is no reason why a marriage between siblings or among multiple adults could be rejected.
- The traditional argument that same-sex marriage would negatively affect the sanctity of marriage.
- That to allow same-sex couples to marry would discourage "responsible procreation." That is a term often used by religious and social conservatives to attack families in which the children are not genetically linked to both parents. That is not an easy argument to make because it also attacks families with adopted children or with children from an earlier marriage. 8
- Rev. Kohlmeier: In the interpretation of Bible passages, it is really important that one differentiates between an English translation of the Bible and the original Hebrew, Greek or Aramaic text. You appear to be quoting Leviticus 18 here,. The the most common English translations talks about same-gender sexual behavior between two men as an abomination. But the original Hebrew talks about two Jewish men having sex on a woman's bed as being ritually impure. That is, it is not so much what one does, but what one's religion is and where one does it.
The following information source was used to prepare and update the above
essay. The hyperlink is not necessarily still active today.
- Wisconsin Legislative Documents: Chapter 19," Wisconsin State Legislature, at: https://docs.legis.wisconsin.gov/
- "Article IV, Section 28, "Oaths of Office," Annotated Wisconsin Constitution, Wisconsin State Legislature, 2014-JUN-04, at: https://docs.legis.wisconsin.gov/
- Nick Penzenstadler, "Wisconsin judge puts same-sex marriages on hold," USA Today, 2014-JUN-13, at: http://www.usatoday.com/
- Judge Barbara B. Crabb, "Opinion and Order," Post Crescent, 2014-JUN-13, at: http://www.postcrescent.com/
- Nick Penzenstadler, "Judge halts gay marriages but orders equal rights," Post Crescent, 2014-JUN-13, at: http://www.postcrescent.com/
- "Statement from Attorney General J.B. Van Hollen," NBC News, 2014-JUN-14, at: http://www.nbc15.com/
- "Judge orders temporary halt to same-sex marriages in Wisconsin." FOX6NOW, 2014-JUN-13, at:
- Ed Treleven, "How might Wisconsin argue for the marriage ban? Experts weigh in," Wisconsin State Journal, 2014-JUN-15, at: http://host.madison.com/
First posted: 2014-JUN-12
Latest update: 2014-JUN-15
Author: B.A. Robinson