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Posts for June, 2014

Wisconsin Same-Sex Marriages Put On Hold

Jim Burroway

June 16th, 2014

Federal District Juidge Barbara Crabb, who earlier had ruled that Wisconsin’s ban on same-sex marriages violated the U.S. Constitution, has issued her injunction on Friday which also includes a stay.

Judge Crabb’s earlier ruling was unusual in that, unlike other rulings, hers did not include an injunction compelling the state to grant marriage licenses to same-sex couples. Instead, Judge Crabb asked the parties to submit proposed language for an injunction that would follow in a couple of weeks. The original deadline for those proposals was today,but when Dane and Milwaukee Counties decided to begin issuing marriage licenses even in the absence of an injunction, Judge Crab accelerated her timetable. By the time she issued her injunction and stay on Friday, some five out of every six Wisconsin counties were issuing licenses. Judge Crabb’s injunction does order state and county officials to issue marriage licenses, but she also accompanied that order with a stay pending appeal:

After seeing the expressions of joy on the faces of so many newly wedded couples featured in media reports, I find it difficult to impose a stay on the event that is responsible for eliciting that emotion, even if the stay is only temporary. Same-sex couples have waited many years to receive equal treatment under the law, so it is understandable that they do not want to wait any longer. However, a federal district court is required to follow the guidance provided by the Supreme Court. Because I see no way to distinguish this case from Herbert, I conclude that I must stay any injunctive relief pending appeal.

The remaining question is whether the stay should include all relief, including the declaration, rather than just the injunction. Although I remain dubious that it is necessary to “stay” declaratory relief, I understand that there has been much confusion among county clerks regarding the legal effect of the declaration. To avoid further confusion among theclerks, I will issue a stay of all relief.

Joyous Weddings Are Breaking Out In Wisconsin

Jim Burroway

June 6th, 2014

Shari Roll (purple) and Renee Currie embrace after becoming the first same-sex couple to marry in Madison, WI.

The AP says:

It wasn’t clear whether Crabb’s 88-page ruling cleared the way for same-sex marriages to begin immediately, but Milwaukee and Dane county officials began issuing licenses and officiants were at the clerk’s office ready to go in Dane County. Both counties were keeping clerk’s office open past regular closing hours Friday.

Wisconsin Attorney General J.B. Van Hollen says he will seek an emergency federal court order to stop the marriages in light of clerks going ahead with marriages.

Dane County (Madison) and Milwaukee County will stay open until 9:00 tonight. Milwaukee County Executive Chris Abele says he will personally pay for the overtime costs associate with keeping his courthouse open. But Attorney General J.B. Van Hollen said current law is still in force:

“In light of the decision of some county clerks to issue marriage licenses to same-sex couples, I will be filing emergency motions in the federal courts to stay Judge Crabb’s order,” he wrote. “The United States Supreme Court, after a referral from Justice Sotomayor, stayed a lower court’s decision striking down Utah’s ban on same-sex marriage. There is no reason to believe the Supreme Court would treat Wisconsin’s ban any differently.”

Matthew Schreck and José Fernando Gutierrez were the first to marry in Milwaukee.

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.