Wisconsin Becomes 27th State to Allow Same-Sex Marriage

On Friday afternoon, June 6, 2014, marriage equality arrived in Wisconsin. Judge Barbara Crabb of the United States District Court, Western District of Wisconsin, held Wisconsin’s “marriage amendment” to be unconstitutional.

Article XIII, section 13 of Wisconsin’s constitution provides that “[o]nly a marriage between one man and one woman shall be valid or recognized as a marriage in this state.” This amendment was passed by Wisconsin voters in November 2006. Since that time, however, a number of states have extended the right to marry to same-sex couples, and other state bans on same-sex marriages have been struck down by federal judges. At the federal level, the United States Supreme Court last summer struck down the Defense of Marriage Act, thus requiring the federal government to recognize state-sanctioned marriages of same-sex couples.

Earlier this year, the ACLU filed Wolf v. Walker in federal court, challenging the marriage amendment. The plaintiffs in Wolf are eight same-sex couples who live in Wisconsin. Some of those couples have been legally married in other states and want Wisconsin to recognize their marriages; others want to marry and would do so in Wisconsin but for the marriage amendment. On Friday, June 6, 2014, they got their wish.

In an 88-page carefully crafted decision, Judge Crabb held that Wisconsin’s marriage amendment was unconstitutional on two grounds. First, the amendment “interfere[s] with plaintiffs’ right to marry, in violation of the [Fourteenth Amendment’s] due process clause.” Second, the amendment “discriminate[s] against plaintiffs on the basis of sexual orientation, in violation of the [Fourteenth Amendment’s] equal protection clause.”

Judge Crabb pointed out nearly immediately what the case is not about:

This case is not about whether marriages between same-sex couples are consistent or inconsistent with the teaching of a particular religion, whether such marriages are moral or immoral or whether they are something that should be encouraged or discouraged. . . . Quite simply, this case is about liberty and equality, the two cornerstones of the rights protected by the United States Constitution.

An important point to make, to be sure, because many of opponents’ complaints about marriage equality are based in the “immorality” of the relationship between (much less the marriage of) same-sex couples (even cloaking “immorality” concerns as “tradition”) and the concern that the state allowing or recognizing such unions translates somehow into state sanction or approval of those unions. (See Lawrence v. Texas, 539 U.S. 558, 601-02 (2003) (Scalia, J., dissenting) (“‘[P]reserving the traditional institution of marriage’ is just a kinder way of describing the State’s moral disapproval of same-sex couples.”).) Some misconstrue marriage equality to mean that if the state issues marriage licenses to same-sex couples, those couples will be allowed to marry in religious settings or that members of a particular religious group must now be required to approve of a same-sex marriage. As Judge Crabb noted, none of that is what this case is about. No particular religious group is required by mere court decision to approve of conduct or perform ceremonies that do not jibe with the tenets of its philosophy.

What the decision does mean is that the state—a non-religious institution—cannot deny a fundamental right to a particular group of citizens if it offers that right to other citizens unless there are sufficiently important state interests to justify it. And in this case, none do. Judge Crabb wrote,

[I]f the state is going to deprive an entire class of citizens of a right as fundamental as marriage, then it must do more than say “this is the way it has always been” or “we’re not ready yet.”

Judge Crabb dismissed all of the reasons defendants proffered as requiring a ban on same-sex marriage. Among those reasons were that such a ban preserves tradition, that it encourages procreation; that it provides for “optimal” child rearing; and that it protects the institution of marriage as a child-centric institution.

First, Judge Crabb corrected defendants, who contended that the “traditional” form of marriage has been between one man and one woman, by noting that “traditionally” across history marriage has often been between one man and multiple women – “presumably . . . not a tradition that defendants and amici would like to continue.” As well, “tradition” can sometimes justify oppressive practices, like slavery, anti-miscegenation laws, segregation, denial of the right to vote for both African-Americans and for women, and for the deprivation of many opportunities for women based on “traditional” beliefs about women’s abilities and intelligence. Judge Crabb cited Justice Oliver Wendall Holmes when she wrote, “[I]f blind adherence to the past is the only justification for the law, it must fail.”

Next, Judge Crabb dismissed the procreation rationale. Defendants claimed that because same-sex couples cannot procreate with each other, their marriages do not serve the same purpose as heterosexual marriage. Judge Crabb noted that defendants did not explain, however, how banning same-sex marriage would affect the procreation habits of opposite-sex couples. Further, many opposite-sex couples do not (or cannot) procreate, and the state has not made procreation a requirement for marriage. Clearly, then, marriage is about more than simply procreating.

Third, Judge Crabb determined that defendants’ reasoning that marriage between a man and a woman provides for optimal child rearing because children should be raised by their biological parents could not be supported. Credible evidence indicates that children of same-sex parents fare no worse than children of opposite-sex biological parents. As well, with or without marriage, same-sex couples will continue to raise children; not allowing those children to have married parents is arguably more detrimental to them. Further, having opposite-sex parents does not necessarily make for optimal child rearing environments and the state does not ask opposite-sex couples to show that they will be good parents. As Judge Crabb wrote, “A felon, an alcoholic or even a person with a history of child abuse may obtain a marriage license.” Thus, she dismissed this argument as a reason to support a ban on same-sex marriage.

I will add that suggesting that “optimal” child rearing requires the biological mother and father does a disservice to adopted children and to the many, many children raised in single-parent households. Adopted children are not raised by their biological parents, even if they are raised in a household with a husband and a wife. As well, a large number of children are raised in single-parent households, whether because the parent never married, the parent is divorced (and the other parent may have little to no contact with the child), or because one parent died. To suggest that these children are being raised in less than optimal environments or that the parent’s child rearing is less than optimal insults both the parents and the children.

Finally, defendants claimed that prohibiting same-sex marriage protects the institution of marriage. “‘Reshaping social norms about marriage could have harmful effects,’ such as ‘shifting the public understanding of marriage away from a largely child-centric institution to an adult-centric institution focused on emotion.’” (Quoting Defendants’ Brief.) Judge Crabb easily found no merit in this contention.

It’s hard to see how allowing same-sex couples to marry somehow devalues or endangers heterosexual marriage. We allow opposite-sex couples to marry whether they intend to have children or not (and, indeed, no state official asks couples their intentions on procreation as a prerequisite for a marriage license); no-fault divorce allows opposite-sex couples to easily undo their marriages; half of all heterosexual marriages (with or without children) end in divorce; and many, many people marry two, three, or more times. (Elizabeth Taylor had been married eight times.) We’ve even denigrated marriage enough to use the “serious” pursuit of it as entertainment in shows like The Bachelor and The Bachelorette. How could allowing same-sex couples to marry somehow threaten an institution that we as a society have already devalued and weakened? As for marriage as a child-centric institution and not an adult-centric institution focused on emotion — I’ll be sure to pass that tidbit along to the opposite-sex couples I know who married mid-life with no intention of having children, so they know their reasons for marrying must have been misguided.

Judge Crabb pointed out that “personal beliefs, anxiety about change and discomfort about an unfamiliar way of life must give way to a respect to the constitutional rights of individuals.” Were this not so, we’d still allow segregation in schools and public places, deny interracial couples the right to marry, deny Amish people the right to educate their children as they see fit, among many other things. (Judge Crabb cited several United States Supreme Court cases to illustrate this point.) In requiring us to respect the constitutional rights of individuals (indeed, the very cornerstone of our Constitution), “courts do not ‘endorse’ marriage between same-sex couples, but merely affirm that those couples have rights to liberty and equality under Constitution, just as heterosexual couples do.”

Hence, marriage equality. A marriage is a marriage, whether its participants are a man and a woman, an interracial couple, or two people of the same sex. None is “better” as an institution than the other, thus none should have a qualifier before it (like “same-sex”). Marriage is a fundamental right — for all people.

The state has asked for a stay of Judge Crabb’s decision. In the meantime, 283 couples married in Milwaukee and Dane counties between Friday afternoon and Saturday. Congratulations to those newly wed this weekend, and to those whose legal marriages elsewhere are now recognized as legal here. Best wishes to you all for long and happy lives together.

This Post Has 4 Comments

  1. Nick Zales

    Good article. I have a question. If the 7th Circuit or the U.S. S.Ct. were to reverse Judge Crabb’s decision, would the marriages being performed now still be valid? I would think so, but do not know.

  2. Lisa A. Mazzie

    @Nick–I believe they would still be valid marriages, at least for federal purposes/benefits, but I don’t think the State of Wisconsin would be required to recognize them. But like you, I’m not entirely sure.

  3. Irene Ten Cate

    Nick, here are a few thoughts on your question, with the caveat that I’m not an expert. The tl;dr version is that as far as I know, the issue is unsettled. The situation may come up in Utah (if the Tenth Circuit reverses Judge Shelby’s decision striking down a voter-approved same-sex marriage ban under the federal Constitution) and some related issues have already manifested themselves there. I’ll try to write a separate comment about the Utah situation later, but for now I’ll note that the question of how to treat marriages entered into in reliance on a court decision has come up in California. At the outset, though, I should say that the California situation differed in significant respects from the scenario you describe.

    As you may recall, in May 2008, the California Supreme Court in the In re Marriage Cases decision struck down state statutes banning same-sex marriages under the equal protection clause of the California Constitution. After this decision, approximately 18,000 same-sex couples got married in California. The right of same-sex couples to marry was eliminated by Proposition 8, an amendment to the California Constitution that was adopted by referendum during the general elections on November 4, 2008. The California Supreme Court upheld Proposition 8 in its 2009 decision in Strauss v. Horton, but it also ruled that the amendment did not affect the validity of marriages that were performed during the window in which same-sex marriages were legal in California. In other words, it declined to apply Proposition 8 retroactively. In part, this was based on the court’s interpretation of the text of Proposition 8, but the court also noted that retroactive application would deprive those who got married in reliance on the In re Marriage Cases decision of a vested right without due process of law under the California Constitution.

    The California decision is instructive, but there are at least two reasons why it is not very relevant to your scenario. First, the California Supreme Court interpreted the California Constitution, not the federal one. Second, Proposition 8 constituted affirmatively changed the (state) Constitution itself. The same-sex couples who got married before adoption of Proposition 8 relied on the highest state court’s interpretation of the California Constitution as it existed at that time. Under those circumstances, invalidating marriages based on a subsequent amendment would truly be a retroactive application of a change in substantive law. In contrast, a Seventh Circuit reversal of Judge Crabb’s decision would merely be a ruling by an appellate court, in the exercise of its error correction function, that the lower court’s interpretation of the federal Constitution was wrong.

    I should also note the Ninth Circuit’s decision in Perry v. Brown (the case that made it to the Supreme Court under the name Hollingsworth v. Perry and in which the Supreme Court held that Proposition 8 sponsors lacked standing to appeal the Ninth Circuit’s decision). In its February 7, 2012 decision in Perry, the Ninth Circuit upheld a district court’s ruling striking down Proposition 8. In so doing, the Ninth Circuit held that Proposition 8 violated the Equal Protection Clause of the Federal Constitution by targeting a minority group for elimination of a fundamental right that it possessed before the amendment.

    The Ninth Circuit’s decision in Perry also has limited relevance for the situation you describe, for the reason I mentioned before: Proposition 8 eliminated a right that had affirmatively been held to exist by the highest authority, whereas in your scenario an appellate court would hold that same-sex couples don’t have a constitutional right to marry to begin with. In addition, of course, a Ninth Circuit decision would not be binding on the Seventh Circuit.

    All this said, as a psychological matter the stakes are raised dramatically once marriage certificates have been extended. Try explaining to same-sex couples who got married in Wisconsin after Judge Crabb’s decision that technically nothing is taken away from them as their marriage was never valid to begin with. It’s the kind of argument that doesn’t make a lot of sense to non-lawyers. And I would think that appellate judges are sensitive to that, especially given the recent shift in public opinion about marriage equality.

  4. Nick Zales

    Thank you Lisa and Irene! I should have known the answer would be complicated, but I had no idea it would be this complicated.

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