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Religious Tolerance logo


Same-Sex Marriages (SSMs)
in Wisconsin

Part 7: 2014-JUL & AUG:
Wolf v. Walker case is appealed to a three-judge
panel of the 7th U.S. Circuit Court of Appeals.

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This topic is continued from the previous essay

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wedding rings2014-JUL-10: Wisconsin Attorney General appeals Wolf v. Walker case:

Attorney General J.B. Van Hollen (R) appealed the case to the 7th U.S. Circuit Court of Appeals. This court handles cases on appeal from Illinois, Indiana and Wisconsin. However, Illinois has already legalized marriages by same-sex couples. A three-judge panel was selected at random to hear the case.

John Knight, the lead American Civil Liberties Union attorney who is representing the plaintiffs in Wisconsin's Wolf v. Walker, said:

"We’re disappointed to see that the state is still fighting to stop loving, committed couples from marrying. However, we are glad to see an end to the state’s effort to put off resolution of this case."

The deadline for filing the appeal was JUL-21. However, the Court of Appeals decided to implement an expedited schedule for three very similar cases from Indiana with the intent of hearing these three cases and the Wisconsin case in a single session.

Van Hollen issued the appeal for Wisconsin's case early. He said in an email:

"The goal of our timing is simple: to ensure that Wisconsin is placed on equal footing with Indiana, and that our constitution and laws are given timely consideration by the appellate judges." 1

On JUL-11, the Court of Appeals accepted Van Hollen's appeal of Wolf v. Walker. They ordered that all briefs were to be filed very quickly, by AUG-04.

On JUL-14, the Attorneys General in both Wisconsin and Indiana asked that the full court of ten judges hear the case. The normal practice is to have a randomly selected three-judge panel to initially hear cases. The panel's ruling is often later appealed to the full court.

On JUL-26, 15 state senators and 24 state representatives -- all Democrats -- asked Wisconsin Governor Scott Walker (R) and Attorney General Van Hollen (R) to drop the appeal. They claimed that it would be a waste of taxpayers' money to continue defending the ban.

On JUL-21, the ACLU filed a brief with the Court of Appeals which objected to Wisconsin's case being heard by the full court, rather than a three-judge panel. 2

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2014-AUG-21: Attorney General receives a petition from the public, asking that the appeal be dropped:

Wisconsin Unites for Marriage sponsored a petition drive which collected over 3,200 signatures. The petition asked Attorney General J.B. Van Hollen (R) to drop the appeal of the Wolf v. Walker case to the 7th U.S. Circuit Court of Appeals. Giving up on the appeal would allow same-sex couples to marry in Wisconsin, and would require the state to recognize marriages by same-sex couples that were solemnized out-of-state.

Rob Van Nevel, who lives in Madison with his partner Tony Jamieson and their 4-year-old son, said:

We are here today to send a message to J.B. Van Hollen. He needs to stop attacking me and my family with my taxpayer money."

Kate Hewson and Jessica Courtier married in Wisconsin during the brief interval in early June shortly after the ruling by District Court, when marriage licenses were available to same-sex couples. Hewson said:

"When Judge Crabb lifted the ban we decided to get married here, in our state. We were planning on going to Iowa. Now our marriage is in a legal limbo. ... We are on the right side of history. In all of the cases (ruled upon) so far, our side has been winning. We believe that will also be the case, here. It is basically hurtful and a waste of resources for the Attorney General to continue to defend the discriminatory ban against marriage for same-sex couples. 3

Attorney General Van Hollen apparently refused the petitioners' request. The appeal continued.

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2014-AUG-26: Three judge panel of the 7th U.S. Circuit Court of Appeals heard marriage equality cases from both Wisconsin and Indiana:

In a single session, the Court heard oral arguments involving:

  • The Wisconsin case, Wolf v. Walker, which was filed by the American Civil Liberties Union in 2014-FEB. It is attempting to have a Wisconsin Referendum 1 declared unconstitutional. It was a constitutional amendment banning marriage and civil unions by same-sex couples . The amendment was passed by 59% of voters in 2006.

  • Three Indiana cases, including one filed by Lambda Legal in 2014-MAR. They are attempting to have state statutes banning marriage by same sex couples declared unconstitutional. The three cases were combined during this appeal.

Three judges were randomly chosen from the full complement of ten judges on the court to form a three-judge panel. However, the Attorney Generals' offices of Wisconsin and Indiana, and supporters of the marriage ban among the public had really bad luck. All three judges turned out to have liberal leanings. The result was predictable. Multiple judges prodded Indiana Solicitor General Thomas M. Fisher and Wisconsin Assistant Attorney General Timothy Samuelson without mercy, asking them penetrating questions to explore their claim that marriage equality was a bad idea.

Fisher was attempting to justify the belief that Indiana's ban on same-sex marriage is based on a governmental concern over the birth of unintended children. By encouraging opposite-sex couples to marry "into relationships that are durable and longstanding" unintended children would be more likely to be accepted and raised by the couple. Judge Posner interrupted Fisher's argument, asking:

"You are concerned with the unfortunate children produced by accidental births. I'm saying, many of these [unintended children] are adopted by same-sex couples, and these children will be better off if their parents can marry, no? Isn't that obvious?"

Judge Posner further noted that many of these children were born to unmarried women and eventually adopted by same-sex parents. He asked:

"Which do you think is better for the psychological health, for the welfare of this child: to have the married same-sex parents or the unmarried?"

To which Fisher responded that he "... didn't feel like it's my job to answer."

Posner concluded: "It's a matter of indifference to you."

Samuelson repeatedly used tradition as the foundational justification for the ban on marriage by loving, committed same-sex couples. Referring to the U.S. Supreme Court ruling in Loving v. Virginia during 1967, Judge Posner replied:

"It was tradition to not allow blacks and whites to marry – a tradition that got swept away, ... [prohibition of same sex marriage] is a tradition of hate ... and savage discrimination."

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Neil Steinberg, writing for the Chicago Sun Times.com web site, described the defendants lawyers' presentation in an article titled: "Dumb arguments against same-sex marriage don't hide bigotry."

He wrote:

""At least they’re candid. No pussyfooting around for them. They state their hate boldly, cast their slurs loudly and only then try to back it up with whatever false theories they believe support their irrational hatreds. ..."

"The facts are simple: Gays make no worse spouses or parents than anyone else. But an argument must be made, and since the 'We hate them,' and ''They wreck straight marriage' tacks have finally been hooted down as too embarrassing, the states claim that:

  1. It’s better for children to be raised by two parents, and those parents generally are straight so

  2. Gay marriage should be illegal. 

The first is true, sort of, though a gross simplification. But aren’t gay parents also two people? In a not-so-deft sleight of hand, the focus is put on the number, since the true concern — the sexuality of the couple — is a nonstarter. So the talk was of vague cultural norms ..." 4

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This topic is continued on the next page

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References used:

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

  1. "Wisconsin AG files appeal in same-sex marriage ruling," LGBTQNATION™  2014-JUL-10, at: http://www.lgbtqnation.com/
  2. "Same-sex couples don't think full 7th Circuit Court of Appeals should hear arguments," NBC15, 2014-JUL-21, at: http://www.nbc15.com/
  3. Jessica VanEgeren, "Petition to drop same-sex marriage appeal delivered to J.B. Van Hollen's office," Cap Times, 2014-AUG-22, at: http://host.madison.com/
  4. Neil Steinberg, "Dumb arguments against same-sex marriage don’t hide bigotry," Chicago Sun Times, 2014-AUG-28, at: http://politics.suntimes.com/

Site navigation:

Home > Religious info. > Basic > Marriage > SSM > Menu > Wisconsin > here

Home > "Hot" topics > Homosexuality> SSM > Menu > Wisconsin > here

Copyright © 2014 by Ontario Consultants on Religious Tolerance 
First posted: 2014-AUG-27
Latest update: 2014-SEP-06
Author: B.A. Robinson

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