As of this writing, same-sex couples may marry, and their marriages are honored, in 17 states and the District of Columbia. That total is up by five in the past nine months, and Illinois will make it 18 in June.
On the other hand, 33 other states have either a law or an amendment to the state constitution prohibiting marriage equality. That number is likely to fall in the coming months, and the number of states with marriage equality will correspondingly rise. This is because since the United States Supreme Court struck down Section 3 of DOMA in June 2013, resulting in federal recognition of our marriages, eight “marriage amendments” have been ruled unconstitutional by federal trial courts, though those rulings are on appeal. Notably, no such amendment has been upheld by a court since the DOMA ruling.
Public opinion is also shifting. Eight years ago a strong majority of Americans did not support marriage equality, and Wisconsin citizens voted to soil our constitution with a “marriage amendment” of our own. Yet over the past few years, poll after poll has demonstrated growing support for the freedom of same-sex couples to marry. The trend is even present in Wisconsin: a Marquette University poll in March showed that 59 percent favor repealing our “marriage amendment”—that is about the same percentage of those who voted for it eight years ago. The same poll showed that 48 percent favor marriage equality, and 24 percent support civil unions. A poll commissioned by Fair Wisconsin and just released as this issue goes to press found 51 percent in favor of marriage equality and vastly improved acceptance of gays and lesbians over the last nine years. This growing acceptance is particularly notable among seniors, Republicans, and men who did not go to college.
Clearly, a wave of marriage equality is sweeping the nation, and Wisconsin is part of it. On the litigation front, 26 of the 33 marriage bans are being challenged in court, including here in Wisconsin. Earlier this year, Virginia Wolf, her partner Carol Schumacher, and seven other Wisconsin couples represented by the ACLU brought a lawsuit against Governor Walker and other governmental officials to challenge the constitutionality of Wisconsin’s anti-marriage amendment. Like the challengers in the other 25 states, the Wisconsin couples (known as “the plaintiffs” in legal parlance) seek a ruling directing the State of Wisconsin to provide same-sex couples with marriage equality: to allow us to marry here and to honor our marriages. They also seek a ruling that Wisconsin’s marriage evasion law, which makes it a crime to leave Wisconsin in order to form a marriage that is “prohibited” or “void” here and then return, is unconstitutional. The case was filed in the federal trial court located in Madison and has been assigned to Judge Barbara Crabb.
The Wolf lawsuit is off to a good, though rocky, start. Within weeks of filing the lawsuit, the plaintiffs asked Judge Crabb for an interim order that would have allowed marriages between same-sex couples to begin in Wisconsin immediately. Judge Crabb explained that if she granted such a request, it likely would not have significant practical effect because it probably would be put on hold while the State appealed it, as has happened in similar challenges in other states. Thus, ultimate resolution of the lawsuit, and hence access to marriage equality, would be further delayed. Instead, she suggested that the plaintiffs withdraw their request and in exchange offered to put the lawsuit on a fast track. The plaintiffs agreed to follow the suggestion, and a final decision in the case is expected before the end of the year.
Next, in March, the State filed a request asking that the lawsuit be dismissed right away. While that is unlikely to happen in its entirety, it is possible that a resolution to the challenge to the marriage evasion statute will come quickly and positively. When the State asked the judge to dismiss that part of the lawsuit, it took the position that when Wisconsin same-sex couples marry in other states, they are not entering into marriages that are “prohibited” or “void” in Wisconsin, but instead are “merely” in marriages that the state does not recognize. Thus, those couples are not violating the marriage evasion statute and are not exposed to criminal prosecution. Hopefully Judge Crabb soon will formally agree with this interpretation of the statute, and law-abiding couples who travel elsewhere to marry will be able to return home without fear of serving jail time.
Finally, Fair Wisconsin and its Democratic allies in the state Legislature are to be commended for the effort to repeal Wisconsin’s “marriage amendment” earlier this year. As noted above, public support for the amendment has fallen drastically, as citizens come to recognize their gay and lesbian neighbors as deserving of the ability to marry the person they love. Unfortunately, that sentiment has not reached the extremists in the Legislature, where a vote to start the repeal process failed in the Senate with all Democrats voting in favor and all Republicans voting against. It is now clear exactly who considers us to be undeserving of equal protection under the law. n
Tamara Packard is a Madison civil rights lawyer, activist, and partner in the law firm of Cullen Weston Pines & Bach LLP, www.cwpb.com.