Friday, June 6, 2014

Wisconsin's Same-Sex Marriage Ban Struck Down

A federal judge has struck down Wisconsin's same-sex marriage ban, although there was confusion over when couples could begin getting married.

"Quite simply, this case is about liberty and equality, the two cornerstones of the rights protected by the United States Constitution," U.S. District Judge Barbara Crabb wrote in her Friday ruling.

In her order, Crabb gave the plaintiffs until June 16 to submit a proposed injunction describing "in reasonable detail ... the act or acts restrained or required" and gave the state a week after that to reply.

But Dane County clerk Scott McDonell began to issue licenses at about 5 p.m. Friday. One couple -- Shari Roll and Renee Currie -- had already arrived at the clerk's office and were the first to get their license.

It feels good "to finally be accepted for just being us," Roll said.

After the couple received their license, they were married just outside of the City-County Building by Mike Quito.

Numerous people were being deputized to issue marriage licenses Friday, and several judges were on hand to officiate.

Milwaukee County executive Chris Abele ordered his office to stay open until 9 p.m. Friday to allow gay couples to marry. Abele, who announced the news at Milwaukee's PrideFest, said he would personally pay overtime costs of county workers.

Van Hollen late Friday filed an emergency motion aimed at stopping the marriages, arguing that the order should be put on hold pending appeal.

"In light of the decision of some county clerks to issue marriage licenses to same-sex couples, I will be filing emergency motions in the federal courts to stay Judge Crabb’s order," Van Hollen said.

But Lester Pines, a prominent Madison attorney who supports marriage rights, said the judge’s order as it stands makes it clear that clerks can issue licenses immediately, even though no injunction has yet been issued.

"She has made a finding, a declaration, that the law is unconstitutional," Pines said. "That means the law is void. That ruling that the law is void is effective today."

The American Civil Liberties Union had challenged the law on behalf of eight same-sex couples. The attorneys who filed the lawsuit, ACLU staff members and some of the plaintiffs held news conferences in Madison and Milwaukee Friday afternoon to discuss the ruling.

Kristin Hansen, development director for the ACLU, joined some of the couples involved in the lawsuit on the State Street steps of the state Capitol, where she and others applauded the court's ruling. Standing in the bright sunshine, she called it a beautiful day that had become an even "more beautiful day."

"We don't think that basic civil rights should be up to the voters," Hansen said. "We just don't think that the majority should vote on the civil rights of the minority."

Two of the eight couples who are plaintiffs in the suit appeared at the press conference.

"We're so excited to finally put this part of our relationship -- this unmarried part of our relationship -- to the side, to move forward," said Pam Kleiss, 49, of Madison, a secretary at UW Hospital.

She held hands with her partner, Salud Garcia, 51, a bakery worker, who thanked the ACLU for being brave enough to take on the case "when everyone else turned their backs and thought this case was unwinnable."

After the press conference, the couple said they were headed to the county clerk's office to get a marriage license, though they planned to hold off on the ceremony until a pastor at their church, Orchard Ridge United Church of Christ, was available.

"It would feel disloyal to not have them marry us," Garcia said.

The other plaintiff couple, also from Madison, said they were married in Canada seven years ago but became unmarried in the eyes of Wisconsin when they moved here.

"To have the state of Wisconsin finally recognize that we are married, have been married, and will always be married under the law feels fantastic, absolutely fantistic," said Keith Borden, 41, a yoga instructor. His husband, Johannes Wallmann, 39, is director of jazz studies at UW-Madison.

The ACLU closed the news conference by having the crowd sing "Going to the Chapel of Love" and signing a large thank you note to the couples involved in the lawsuit.

Attorney General J.B. Van Hollen said in a statement that the ban remains in effect and said he would appeal Crabb's ruling. He called the ruling a "setback."

“As Attorney General, I have an obligation to uphold Wisconsin law and our Constitution," Van Hollen said in a statement. "While today’s decision is a setback, we will continue to defend the constitutionality of our traditional marriage laws and the constitutional amendment, which was overwhelmingly approved by voters. I will appeal."

He said he was encouraged by Crabb's decision not to issue an immediate injunction.

"We have seen the disruption to couples and families throughout the United States when courts have first allowed same-sex marriage only to have those marriages subsequently called into question by another court," he said. "I anticipate the United States Supreme Court will give finality to this issue in their next term."

A spokeswoman for Republican Gov. Scott Walker said, "It is correct for the Attorney General, on this or any other issue, to defend the constitution of the state of Wisconsin, especially in a case where the people voted to amend it."

His Democratic challenger Mary Burke said, "Today is a great day for Wisconsin and committed couples who love each other across the state. Every loving couple should have the freedom to marry whomever they choose, and the fact that this freedom is now available in Wisconsin is something we all can and should be proud of."

In Wisconsin Dells, a cheer echoed through the hallway at the state Democratic convention, which was getting underway Friday night, as the news about the gay marriage ban being overturned was announced.

Party chairman Mike Tate, who ran the gay rights advocacy group Fair Wisconsin in 2006, began to tear up as he rushed to rewrite his convention speech scheduled for later Friday night.

"I knew that justice would prevail," Tate said. "It came earlier than I expected so it’s really a great day."

Cheers also went up in the office of OutReach, a community center in Madison for the LGBT (lesbian, gay, bisexual and transgender) community when news of the decision came out, executive director Steve Starkey said.

"The reaction is celebratory," he said. "We've been fighting for a long time, and this is very exciting news."

He said he expected same-sex couples to begin calling the organization on what this means immediately for the availability of same-sex marriage in the state, and he was working on getting clarity himself on that issue, he said.

He said he was impressed with the strength and emotional power of Crabb's reasoning. "It's a very powerful statement," he said.

"Today’s decision out of Wisconsin marks the twentieth consecutive ruling by a federal or state judge since last year that a discriminatory state marriage ban is unconstitutional," Evan Wolfson, president of Freedom to Marry, said in a statement. "Across the country, the courts agree: same-sex couples and their families need the dignity of marriage, and anti-marriage laws are indefensible. With over 70 marriage cases now making their way through the courts, today's decision in Wisconsin underscores that all of America is ready for the freedom to marry. It's time now for the Supreme Court to bring resolution nationwide."

"This case is not about whether marriages between same-sex couples are consistent or inconsistent with the teachings of a particular religion, whether such marriages are moral or immoral or whether they are something that should be encouraged or discouraged," Crabb wrote in her order. "It is not even about whether plaintiffs in this case are as capable as opposite-sex couples of maintaining a committed and loving relationship or raising a family together."

In her opinion, Crabb wrote about the central role marriage plays in American society.

"And perhaps more than any other endeavor, we view marriage as essential to the pursuit of happiness, one of the inalienable rights in our Declaration of Independence," she wrote. "Thus, by refusing to extend marriage to the plaintiffs in this case, defendants are not only withholding benefits such as tax credits and marital property rights, but also denying equal citizenship to plaintiffs."

She said state law violated the plaintiffs' "fundamental right to marry and their right to equal protection of laws under the Fourteenth Amendment to the U.S. Constitution."

Two of the plaintiffs, Kami Young and Karina Willes of West Milwaukee, were legally married last year in Minnesota and have a newborn daughter. But because Young is the birth mother, she is the only one who is recognized as the legal parent on the birth certificate.

"Our daughter has two parents who love her dearly,” Willes said in a statement. "I am no less a mother to her than Kami is, and she deserves the security of having both of her parents legally recognized. Our daughter shouldn’t have second-class protections."

"We are tremendously happy that these loving and committed couples will now be able to access the security and recognition that only marriage provides," Larry Dupuis, legal director of the ACLU of Wisconsin, said in a statement. "These discriminatory laws are falling around the country and it is only right that Wisconsin move forward as well."

"Wisconsin’s constitutional ban on marriage for same-sex couples is a striking example of intentional discrimination towards lesbians and gay men in Wisconsin," said John Knight, staff attorney with the ACLU Lesbian Gay Bisexual and Transgender Project. “The marriage ban has sent a powerful message that same-sex couples are undeserving of the dignity and important legal protections associated with marriage. Judge Crabb’s decision that same-sex couples are equal under the law sends an entirely different message -- one inviting and encouraging fair treatment and respect for these couples."

Julaine Appling, president of Wisconsin Family Action, which has sought to overturn the state's domestic partner registry for gay and lesbian couples, was furious with Friday's ruling.
"I think it's extremely disappointing," Appling said.

She said same-sex marriage supporters had taken the "chicken" way out by "running to the courts" rather than going to a vote by Wisconsinites.

"When did 'we the people' become 'I the judge?'" Appling said. "When did marriage between a man and a woman become unconstitutional?"

In her opinion, Crabb wrote that she would address the state's pending motion to stay an injunction until after materials on the proposed injunction are filed. She wrote that both sides could supplement what they've already submitted on the motion.

> The article above is reprinted from the Wisconsin State Journal and was written by Mary Spicuzza. State Journal reporters Matthew DeFour, Ed Treleven, Doug Erickson and Steven Verburg also contributed to this article. 

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