Box Turtle Bulletin

Box Turtle BulletinNews, analysis and fact-checking of anti-gay rhetoric
“Now you must raise your children up in a world where that union of man and box turtle is on the same legal footing as man and wife…”
This article can be found at:
Latest Posts

Okay, It’s Friday Afternoon. Which State’s Marriage Ban Got Knocked Down Today?

Jim Burroway

June 6th, 2014

Wisconsin! (PDF: 439KB/88 pages)

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, that limit marriages to a “husband” and a “wife,” are unconstitutional as applied to same-sex couples.

But marriages aren’t available in the Badger State just yet:

Plaintiffs may have until June 16, 2014, to submit a proposed injunction that complies with the requirement in Fed. R. Civ. P. 65(d)(1)(C) to “describe in reasonable detail . . . the act or acts restrained or required.” In particular, plaintiffs should identify what they want each named defendant to do or be enjoined from doing. Defendants may have one week from the date plaintiffs file their proposed injunction to file an opposition. If defendants file an opposition, plaintiffs may have one week from that date to file a reply in support of their proposed injunction.

I will address defendants’ pending motion to stay the injunction after the parties have had an opportunity to file materials related to the proposed injunction. If the parties wish, they may have until June 16, 2014, to supplement their materials related to that motion in light of the Supreme Court’s decision in Geiger v. Kitzhaber not to grant a stay in that case.

(UPDATE: It looks like some counties aren’t waiting until the 16th to begin issuing licenses. But without an injunction in place, is that legal? Any lawyers in the bunch, please weigh in with your comments.)

This ruling by Federal District Judge Barbara B. Crabb is the twentieth in a string of rulings which have all found that all or portions of several states’ marriage equality bans are unconstitutional. The unanimity of these rulings since the Windsor ruling last summer is breathtaking. It’s hard to image at this point, regardless of which of the dozens of appeals making their way to the U.S. Supreme Court, how that court can rule that all twenty judges from across the country were somehow reading the law wrong.

The case was brought by the ACLU on behalf of eight Wisconsin same-sex couples. Two of the couples had married out of state — one in Minnesota, and one in Canada.

Judge Crab opened her decision by delineating exactly what the case was all about. In doing so, she issued two notable shout-outs: longtime marriage equality foe Maggie Gallagher, and longtime marriage equality advocate Andrew Sullivan:

In reaching this decision, I do not mean to disparage the legislators and citizens who voted in good conscience for the marriage amendment. To decide this case in favor of plaintiffs, it is not necessary, as some have suggested, to “cast all those who cling to traditional beliefs about the nature of marriage in the role of bigots or superstitious fools,” United States v. Windsor, 133 S. Ct. 2675, 2717-18 (2013) (Alito, J., dissenting), or “adjudg[e] those who oppose [same-sex marriage] . . . enemies of the human race.” Id. at 2709 (Scalia, J., dissenting). Rather, it is necessary to conclude only that the state may not intrude without adequate justification on certain fundamental decisions made by individuals and that, when the state does impose restrictions on these important matters, it must do so in an even-handed manner.

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. It is not even about whether the plaintiffs in this case are as capable as opposite-sex couples of maintaining a committed and loving relationship or raising a family together. Quite simply, this case is about liberty and equality, the two cornerstones of the rights protected by the United States Constitution.

Although the parties in this case disagree about many issues, they do agree about at least one thing, which is the central role that marriage plays in American society. It is a defining rite of passage and one of the most important events in the lives of millions of people, if not the most important for some. Of course, countless government benefits are tied to marriage, as are many responsibilities, but these practical concerns are only one part of the reason that marriage is exalted as a privileged civic status. Marriage is tied to our sense of self, personal autonomy and public dignity. 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. Linda Waite and Maggie Gallagher, Case for Marriage 2 (Broadway Books 2000) (stating that 93% of Americans rate “having a happy marriage” as one of their most important goals, an ever higher percentage than “being in good health”). For these reasons and many others, “marriage is not merely an accumulation of benefits. It is a fundamental mark of citizenship.” Andrew Sullivan, “State of the Union,” New Republic (May 8, 2000). 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.

 Judge Crabb also found one of the state’s arguments for supporting the marriage ban an odd one:

What is perhaps defendants’ oddest argument relies on a distinction between what defendants call “positive rights” and “negative rights.” In other words, the Constitution protects the rights of individuals to be free from government interference (“negative rights”), but it does not give them a right to receive government benefits (“positive rights”). … Thus, defendants say, although the due process clause may protect the right of individuals to engage in certain intimate conduct (a “negative right”), it “does not preclude a state from choosing not to give same-sex couples the positive right to enter the legal status of civil marriage under state law.

Defendants’ argument has two problems. First, the Supreme Court has held on numerous occasions that marriage is a fundamental right protected by the Constitution. E.g., Turner v. Safley, 482 U.S. 78, 95 (1987); Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-640 (1974); Loving v. Virginia, 388 U.S. 1, 12 (1967). Thus, even if marriage is a “positive right” as defendants understand that term, marriage stands as an exception to the general rule.

Second, even if I assume that the state would be free to abolish the institution of marriage if it wished, the fact is that Wisconsin obviously has not abolished marriage; rather, it has limited the class of people who are entitled to marry. The question in this case is not whether the state is required to issue marriage licences as a general matter, but whether it may discriminate against same-sex couples in doing so. Even in cases in which an individual does not have a substantive right to a particular benefit or privilege, once the state extends that benefit to some of its citizens, it is not free to deny the benefit to other citizens for any or no reason on the ground that a “positive right” is at issue. In fact, under the equal protection clause, “the right to equal treatment . . . is not co-extensive with any substantive rights to the benefits denied the party discriminated against.” Heckler v. Mathews, 465 U.S. 728, 739, 646 (1984). Therefore, “[t]he State may not . . . selectively deny its protective services to certain disfavored minorities without violating the Equal Protection Clause.” DeShaney, 489 U.S. at 197 n.3.

Wisconsin Attorney General J.B. Van Hollen, a Republican who is seeking re-election in November, has vowed to appeal the ruling to the Seventh Circuit Court of Appeals, and will seek a stay of the ruling on the 16th. A spokesman for Gov. Scott Walker has issued a statement supporting Van Hollen’s appeal.

Comments

POST COMMENT | COMMENT RSS 2.0

Lord_Byron
June 6th, 2014 | LINK

This makes things complicated for walker’s reelection campaign

Jack
June 6th, 2014 | LINK

Milwaukee TV station reporting that marriages are taking place:

http://www.cbs58.com/news/local-news/Federal-judge-strikes-down-Wisconsins-gay-marriage-ban-262165111.html

Jack
June 6th, 2014 | LINK

A marriage license costs $110, and comes with a mandatory five day wait. The county is offering to waive that wait for an extra $25. Milwaukee County judges will also be on hand to marry people tonight.

Milwaukee County Executive Chris Abele says he will personally cover overtime pay for all employees if he has to.

Ben in Oakland
June 6th, 2014 | LINK

Perfect on so many levels.

The Magster has consistently claimed at marriage is good for everyone– as consistently as she has claimed that gay people should not have it, and as consistently as it has been admitted that in no way to gay people marrying each other impede or harm the marriages of heterosexuals.

I also love the capitalist way– $25 will waive the waiting period. No special rights granted.

Suck on a large watermelon, Mags.

enough already
June 6th, 2014 | LINK

Ben in Oakland,
You summed it up quite well.
Christians have failed to raise one, single, solitary argument against my marriage except for: I define my love of my god through hatred of you.
That’s it. That’s their whole argument.
It’s not good enough for federal judges.
And that’s a good thing.
Oh, and, yes – this will make things interesting for Walker in the fall.
I hope it splits the GOP in Wisconsin so badly they lose up and down the ballet.

Merv
June 6th, 2014 | LINK

I’m not a lawyer, but I read another lawyer addressing the issue of what it meant not to have an injunction. He said that without an injunction clerks *could* choose to issue licenses, but were not *required* to. He also seemed to imply that issuing rulings without an injunctions was a deliberate tactic to allow a window in which legal marriages could take place before a stay is issued.

Mark F.
June 7th, 2014 | LINK

Walker has always been against SSM, voters knew that when they elected him and refused to recall him. I think he will win re-election narrowly, I’m not sure this will hurt him.

JEM
June 7th, 2014 | LINK

To enough already – I understand that it seems like all Christians are against your marriage, but I promise you that isn’t the case. Look at the site gaychurch.org for a list of all the churches all over the country who offer a specific welcome to LGBTQ folks. My own denomination is leading a legal battle in North Carolina involving the ban on SSM. There are many, many of us who are working to change the idea that Christian automatically means anti-gay.

Eric in Oakland
June 7th, 2014 | LINK

“I understand that it seems like all Christians are against your marriage…”

JEM, it doesn’t seem so much that “all Christians” are against gay marriage as all those against gay marriage are Christian.

Timothy Kincaid
June 7th, 2014 | LINK

Well, no, Eric.

Most objection in the United States is based in religion. But you’ll find that this is fairly broad.

Most Jews are supportive, but Orthodox are very opposed to equality, some vehemently so.

Virtually all Muslims are opposed to equality.

And Christians seem to be split pretty evenly, with those most observant being the most opposed yet with a growing group who are seeing equality and justice for gay people as being a ‘Jesus thing’. They are the ones we are hearing from quite loudly recently.

But most people in the US identify as Christian, so of course most opponents do so. But on the other hand, Eric, in the United States the vast majority of people who support marriage equality are Christians.

Eric in Oakland
June 8th, 2014 | LINK

“Most objection in the United States is based in religion… But most people in the US identify as Christian, so of course most opponents do so. But on the other hand, Eric, in the United States the vast majority of people who support marriage equality are Christians”

Tim, I agree with that and didn’t mean to suggest otherwise. To be clearer I should have used the word “religious” in place of “Christians”, but that wouldn’t have made as much sense in context.

Paul in Wisconsin
June 8th, 2014 | LINK

Actually, J.B. Van Hollen had already decided NOT to run for reelection this fall.
Candidates to succeed him have come down predictably on this ruling depending whether they identify as Republican or Democrat.
http://wisconsinelectionwatch.com/tag/2014-race-for-wisconsin-attorney-general/

Leave A Comment

All comments reflect the opinions of commenters only. They are not necessarily those of anyone associated with Box Turtle Bulletin. Comments are subject to our Comments Policy.

(Required)
(Required, never shared)

PLEASE NOTE: All comments are subject to our Comments Policy.