As Professor Idleman alerted our Constitutional Law course last year, there’s nothing like the posture of a criminal defendant challenging a law’s constitutionality. Compare Bowers v. Hardwick, 478 U.S. 186 (1986) (plaintiff who was charged but not indicted under Texas’ sodomy laws unsuccessfully sues attorney general in action seeking to declare laws unconstitutional) with Lawrence v. Texas, 539 U.S. 558 (2003) (criminal defendants’ charges expunged when sodomy laws declared unconstitutional). Sure the passage of time had more than a little to do with the diverging outcomes in Bowers and Lawrence — but the criminal defense posture didn’t hurt.

A criminal defendant and a plaintiff encounter necessarily inconsistent judicial receptions. Put simply, the claim of one who faces the cruel stigma of criminality — where his or her prospective jail time flows in part from a voter-initiated constitutional amendment — will receive a more exacting hearing than a civil complaint filed by an unjailed plaintiff, disgruntled on the losing side of that same amendment’s enactment.

Because Lawrence declared unconstitutional all sodomy laws, however, how could a gay American be criminalized?

Well, assume hypothetically that I was a lesbian. Assume, further, that I wanted to marry my girlfriend in Iowa — say, hypothetically, this Memorial Day weekend. Destination Iowa! What would be wrong with that? After all, Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) — unanimously decided by a since-bullied Iowa Supreme Court — validated a gay person’s right to marry and be miserable and boring but yet markedly happier and healthier like his or her straight friends. What could go wrong with my road-trip-recognized rights?

Under Wisconsin law, I could face a $10,000 fine, be jailed for 9 months, or both. Wisconsin Statute section 765.30(1)(a) permits such a charge if:

(a) Penalty for marriage outside the state to circumvent the laws. Any person residing and intending to continue to reside in this state who goes outside the state and there contracts a marriage prohibited or declared void under the laws of this state.

I am not the first to point out that this law, enacted without gays in mind, could be applied to gay people in Wisconsin who are ready to marry though their state is not ready to marry them. But the provision’s effect in combination with section 13 of the Wisconsin Constitution bears mentioning because of the baffled reaction that follows my introducing the idea to my law school classmates (great cocktail party fare).

What an interesting patchwork of laws I would have to navigate were I, hypothetically, a person who had to live with such concerns. What a triumph of states-as-laboratories federalism. As Professor Boyden has pointed out, on a road trip across the States, I would accelerate into acceptance in Iowa, pump the brakes as I become civil unionized in Illinois, and screech to a halt in Indiana — where my marriage wouldn’t be recognized. Is that like a falling tree in a forest? If a gay marries in Iowa, can you hear it in Indiana? At least if so (to my knowledge), that gay tree can’t be arrested.

As the Journal Sentinel article notes, at least one prosecutor has indicated that enforcing Wisconsin’s don’t-marry-outside-Wisconsin-to-evade-Wisconsin-law statute would be a waste of resources, and that — regardless — juries likely wouldn’t bite. But does the avenue exist to further stigmatize an already stigmatized subset of the populace? As we like to say here in Sconnie — you betcha.

Julliane Appling, chief executive officer of the Wisconsin Family Council, reacted to the statute quoted above in the article linked above:

“If it were challenged and the courts decided to basically wink at it, and refused to enforce the law, we have a problem,” she said, adding that the constitutional amendment clarified that no marriage other than between a man and woman is legal.

But shouldn’t pro-“family” groups jeer, not cheer efficient enforcement of section 765.30(1)(a)?  After all, if a person were hauled into court as a criminal defendant charged under it — a statute essentially made applicable to gays who marry despite section 13 of the Wisconsin Constitution, see Wis. Const. art. XIII, sec. 13 — wouldn’t the case’s procedural posture improve the chances for overturning the amendment that necessitated the defendant’s drive to Iowa in the first place?