It is DECLARED that art. XIII, § 13 of the Wisconsin Constitution violates plaintiffs’ fundamental right to marry and their right to equal protection of laws under the Fourteenth Amendment to the United States Constitution. Any Wisconsin statutory provisions, including those in Wisconsin Statutes chapter 765 [marriage statutes] that limit marriages to a ‘husband’ and a ‘wife,’ are unconstitutional as applied to same-sex marriages.” Barbara B. Crabb, District Court Judge, Western District of Wisconsin.
With those words, on June 6, 2014, Judge Crabb issued a legal decision that many of us have been seeking our entire lives and one that generations of Wisconsin citizens could see only as an unattainable dream. Marriage equality has come to Wisconsin. Just as important as the outcome set forth in the quote above is the reasoning and legal analysis contained in Judge Crabb’s 88-page decision. Despite the fact that her decision is already subject to an appeal and efforts by Attorney General JB Van Hollen and Governor Scott Walker to have marriage equality overturned, her thoughtful, detailed analysis provides a roadmap to what most of us believe to be inevitable: full marriage equality in Wisconsin.
The lawsuit challenged two categories of laws that interfere with marriage equality: the constitutional amendment passed in 2006 and statutes related to marriage formation and recognition. Plaintiffs, represented by the ACLU, contended that these laws violate their fundamental right to marry (a right that the U.S. Supreme Court has previously confirmed for interracial marriages, incarcerated individuals, and people who do not pay court-ordered child support, among others). Judge Crabb declared, “I conclude that the right to marry protected by the Constitution includes same-sex couples.”
Judge Crabb addressed each of the State’s arguments against marriage equality, giving more attention to some over others. She also addressed an argument not specifically raised by the State. In a perhaps preemptive statement, Judge Crabb wrote that domestic partnerships are not the equivalent of marriage, even if all of the tangible benefits would be the same, as “a ‘separate but equal’ institution still connotes a second-class status.”
The State contended that the Court should not interfere with “the traditional view of marriage—between a man and woman [that] has been recognized for millennia.” In response, Judge Crabb pointed out that “throughout history, the most ‘traditional’ form of marriage has not been between one man and one woman, but between one man and multiple women.” She also pointed to some of the “darker” traditions which later generations have rejected as a denial of equality, including slavery, anti-miscegenation, segregation, and denial of women’s right to vote.
The next argument by the State was that one of the primary purposes of marriage was to encourage “responsible procreation.” In rejecting that argument (one used and rejected in many similar lawsuits), Judge Crabb wrote, “One problem with the procreation rationale is that defendants do not identify any reason why denying marriage to same-sex couples will encourage opposite-sex couples to have children, either ‘responsibly’ or ‘irresponsibly.’”
In response to an inference that opposite-sex couples “need” marriage more than same-sex couples do (because of straight people’s irresponsibility with regard to procreation?) Judge Crabb replied, “Treating such a fundamental right [the right to marry] as just another government benefit that can be offered or withheld at the whim of the state is an indicator either that defendants fail to appreciate the implications for equal citizenship that the right to marry has or that they do not see same-sex couples as equal citizens.” She also pointed out that if the point of denying same-sex marriage is because we “can’t” procreate, then why aren’t opposite-sex couples who cannot or will not procreate allowed to marry? She identified George and Martha Washington as one such couple.
As in many prior cases, the State contended that heterosexual marriage is the optimal structure in which to raise children. However, social science data simply does not support the State’s position. Moreover, there are no tests required for heterosexual parenting; heterosexuals who seek to be married do not have to prove they will be good parents or financially responsible. Marriage licenses are issued to heterosexual felons, deadbeat parents, irresponsible 18-year-olds, and even convicted child abusers. Ultimately, Judge Crabb found that “neither defendants nor amici cite any evidence or even develop a cogent argument to support their belief that allowing same-sex couples to marry somehow will lead to the de-valuing of children in marriage or have some other adverse effect on the marriages of heterosexual couples.”
Judge Crabb rejected additional arguments such as the “slippery slope” argument (not one state that has had marriage equality has had anyone propose polygamy) and the “gee, since the majority of Wisconsinites now support marriage equality, just wait for them to reverse the amendment” argument (in itself, a desire to make a class of people wait to exercise constitutional rights is not a legitimate interest).
Judge Crabb ended her decision with a simple statement: “Because my review of the law convinces me that plaintiffs are entitled to the same treatment as any heterosexual couple, I conclude that the Wisconsin laws banning marriage between same-sex couples are unconstitutional.” The implications of this decision go well beyond marriage and will impact legal issues such as adoption (e.g., making stepparent adoptions legal), raising children (married couples who have children would each have parental rights and obligations), taxes, health insurance, and more.
HOWEVER, late in the afternoon on Friday, June 13, 2014, Judge Crabb issued an order staying her injunctions and declaratory relief pending an appeal to the Seventh Circuit Court of Appeals (the court immediately “above” Judge Crabb’s court in the pecking order). In essence, the impact of her decision has been put on hold, and clerks will not be issuing new licenses until further order of the Court. Still to be determined, though, will be the legal impact on couples who were lawfully married before a stay was issued and the legal impact on those of us who married in another state.
Despite the stay, this was a landmark decision and, in my opinion, will ultimately lead to full marriage equality in Wisconsin. Because other courts have made similar decisions that are already winding their way up the legal ladder to the U.S. Supreme Court, it is possible that the U.S. Supreme Court will take on related cases in its next term, which begins in October. Given the tide of decisions and the groundswell of support by ordinary citizens, I believe that unless there is some unexpected turn of events in the makeup of the Supreme Court, we will see full marriage equality become the law of the land—and soon.