Same-sex marriage in Wisconsin

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Legal status of
same-sex relationships
Marriage
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Previously performed and not invalidated
  1. Can be registered also in Aruba, Curaçao and Sint Maarten
  2. Licensed in some counties in Kansas but same-sex marriage is not recognized by the state
  3. Only legal in St. Louis, Missouri
  4. When performed in Mexican states that have legalized same-sex marriage

*Not yet in effect

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Same-sex marriage in Wisconsin has been legal since October 6, 2014, following the resolution of a lawsuit challenging the state's ban on same-sex marriage. On that day, the U.S. Supreme Court refused to hear an appeal of a federal court ruling that found Wisconsin's ban on same-sex marriage unconstitutional. Same-sex couples began progressively in Wisconsin counties following the release of the court's order.

The constitution of Wisconsin had precluded state recognition of same-sex marriages and prohibited the establishment of any similar legal status under another name since 2006, when 59% of voters ratified a constitutional amendment defining marriage so as to exclude same-sex couples. The state's constitution and statutes previously contained no similar restrictions. A federal lawsuit filed in February 2014, Wolf v. Walker, challenged Wisconsin's refusal to grant marriage licenses to same-sex couples, its refusal to recognize same-sex marriages established in other jurisdictions, and related statutes. In June 2014, Judge Barbara Crabb of the U.S. District Court for the Western District of Wisconsin ruled for the plaintiffs and in the week before she stayed her decision county clerks in 60 of the state's 72 counties issued marriage licenses to same-sex couples and some performed marriage ceremonies for them. The state appealed her decision to the Seventh Circuit Court of Appeals, which affirmed her decision on September 4 and later stayed implementation of its ruling until the U.S. Supreme Court decided whether to consider the case.

Public opinion polls since voters adopted the constitutional amendment in 2006 report a trend in favor of legal recognition of same-sex relationships.

Same-sex marriage ban[edit]

Statute[edit]

Legislation that the Family Research Institute (FRI) called a "statutory endorsement of traditional marriage" was proposed in the legislature in 1997.[1] It passed the Assembly on a 78–20 vote, but the Senate took no vote on the measure.[2] Legislation in support of same-sex marriage was also proposed that year, but was not voted on by either chamber.[2]

A bill banning same-sex marriage was introduced in the Assembly on August 17, 2003,[3] and approved on a vote of 68–29 on October 23.[4] The Senate passed the bill by a vote of 22–10 on November 5.[5] Governor Jim Doyle vetoed the legislation on November 10, 2003.[6] The Assembly failed to override the Governor's veto by one vote, 63–33, on November 12.[7]

Wisconsin also has a marriage evasion law, which established criminal penalties of up to nine months imprisonment and a fine up to $10,000 for leaving the state to contract a marriage that would not be valid in the state. According to a spokesperson for Lambda Legal in 2008, several states had similar laws, but Wisconsin's provided the harshest penalties. The applicability of the law to same-sex marriages was disputed, since it was designed to prevent fraud on the part of someone too young to marry legally in Wisconsin.[8][9]

Constitution[edit]

On March 5, 2004, the Assembly approved a state constitutional amendment by a vote of 68–27, that read:[10]

Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.

The Senate approved the same language by a 20–13 vote on March 12, completing the first of two legislative approvals required to place the amendment on the ballot.[11] The Senate approved the proposed amendment again on December 6, 2005, voting 19–14 along party lines.[12] The Assembly did the same on February 28, 2006, by a vote of 62-31. The question appeared as a referendum on the statewide ballot for the 2006 general election on November 7, 2006,[13][14] and voters approved the amendment by a margin of 59.4% to 40.6%.[15]

Lawsuits[edit]

McConkey v. Van Hollen[edit]

William McConkey, a political science instructor filed a lawsuit, McConkey v. Van Hollen, on April 9, 2009, in Wisconsin Supreme Court charging that Wisconsin Referendum 1 (2006), which banned both same-sex marriage and civil unions in the state, violated the state's constitution because it proposed more than one question in a single ballot proposal, which is illegal under Wisconsin law.[16] On May 14, the Court agreed to hear the case, specifying two questions, whether McConkey, as an individual voter, has standing to sue and whether the ballot initiative presented two questions. Wisconsin Attorney General J. B. Van Hollen challenged McConkey's standing.[17][18] The Court heard oral arguments on November 3.[19][20] On June 30, 2010, the Wisconsin Supreme Court ruled 7–0 in McConkey that the ballot measure was proper.[21]

Wolf v. Walker[edit]

Main article: Wolf v. Walker

On February 3, 2014, the American Civil Liberties Union (ACLU) and the law firm of Mayer Brown filed a lawsuit in U.S. District Court for the Western District of Wisconsin on behalf of four same-sex couples, including a lesbian couple married in Minnesota in 2013. It challenged the state constitution's denial of marriage rights to same-sex couples and the state statute that provides criminal penalties for leaving the state to establish a marriage that is not valid in Wisconsin. The suit named Governor Scott Walker, several state officials, and two county clerks as defendants.[22][23]

The case was assigned to U.S. District Judge Barbara Brandriff Crabb, who ruled on June 6, 2014, that the state's constitutional and legislative restrictions on same-sex marriage interfere with the fundamental right to marry, violating the due process clause of the Constitution of the United States, and discriminate on the basis of sexual orientation, violating the equal protection clause.[24]

In response to the decision, though Crabb had yet to issue any order enforcing it, county clerks in increasing numbers began issuing marriage licenses to same-sex couples and in some cases performing marriage ceremonies for them.[25][26] On June 13, after a week of legal maneuvering and a threat of legal action against the clerks on the part of Wisconsin Attorney General J. B. Van Hollen,[27] Crabb stayed enforcement of her decision while expressing disappointment that recent action by the U.S. Supreme Court in the case of Herbert v. Kitchen compelled her to do so.[28]

On July 10, the state appealed the decision to the Seventh Circuit Court of Appeals,[29] which combined the case for briefing and oral argument with a similar Indiana case, Baskin v. Bogan, and scheduled oral arguments for August 26.[30] On September 4, the Seventh Circuit, in a unanimous opinion authored by Judge Richard Posner, upheld the district court decision.[31] On September 9, Wisconsin Attorney General Van Hollen asked the U.S. Supreme Court to consider the case.[32] The Seventh Circuit stayed enforcement of its ruling on September 18.[33] On October 6, 2014, the U.S. Supreme Court denied review of this case, allowing the Circuit Court's ruling to take effect.[34]

Attorney-General J.B. Van Hollen responded by stating: "the Seventh Circuit affirmed the District Court’s decision holding Wisconsin’s Marriage Protection Amendment unconstitutional, and the Supreme Court has declined the opportunity to examine that decision. It is now our obligation to comply with those court decisions."[35]

Halopka-Ivery v. Walker[edit]

On April 16, 2014, a lesbian couple married in California sought original jurisdiction in the Wisconsin Supreme Court. They claimed the state's "parallel civil marriage and domestic partnership structure" denied them access to federal benefits. They also challenged Wisconsin's statute imposing criminal penalties on residents who contract in other jurisdictions a marriage that is not recognized by the state. On May 27, 2014, the state supreme court, on a 5–2 vote, declined to hear the case.[36][37]

Public opinion[edit]

Views on Same-Sex Unions in Wisconsin
Polling Firm Month Link Favor Oppose Not sure
Marriage Civil Union
Public Policy Polling August 2011 [38] 34 33 31 1
Public Policy Polling July 2012 [39] 39 30 28 4
Marquette University October 2012 [40] 44 28 23 n/a
Public Policy Polling February 2013 [41] 39 32 27 2
Marquette University October 2013 [40] 53 24 19 n/a
Public Policy Polling April 2014 [42] 43 28 26 3
Marquette University May 2014 [43] 49 25 18 n/a
Views on Same-Sex Marriages in Wisconsin
Polling Firm Month Link Favor Oppose Not sure
Public Policy Polling May 2011 [44] 42 46 12
Public Policy Polling August 2011 [38] 39 50 11
Public Policy Polling July 2012 [39] 43 47 10
Public Policy Polling February 2013 [41] 44 46 10
Public Policy Polling April 2014 [42] 47 45 8
Marquette University May 2014 [43] 55 37 6

See also[edit]

References[edit]

  1. ^ Fact Sheet #145: Republicans Kill AB 104. Family Research Institute. May 1988. Retrieved November 10, 2014. 
  2. ^ a b Rimmerman, Craig A. (2000). The Politics of Gay Rights. University of Chicago Press. p. 337. Retrieved November 10, 2014. 
  3. ^ [1] The Proposed Legislation
  4. ^ [2] The Passed House
  5. ^ [3] The Passed Senate
  6. ^ [4] Vetoed
  7. ^ [5] Override Attempt
  8. ^ Forster, Stacy (July 3, 2008). "Wisconsin gay couples who marry outside state could face penalty". Milwaukee Journal-Sentinel. Retrieved November 10, 2014. 
  9. ^ Weisberg, Louis (September 4, 2013). "Prisoners of love". Wisconsin Gazette. Retrieved November 10, 2014. 
  10. ^ Assembly Joint Resolution 66, Journal of the Wisconsin Assembly, March 5, 2004, p. 798.
  11. ^ Assembly Joint Resolution 66, Journal of the Wisconsin Senate, March 11, 2004, p. 717. The final vote was taken shortly after midnight on March 12.
  12. ^ Senate Joint Resolution 53, Journal of the Wisconsin Senate, Dec. 6, 2005, p. 488.
  13. ^ Senate Joint Resolution 53, Journal of the Wisconsin Assembly, Feb. 28, 2006, p. 862
  14. ^ "2005 Senate Joint Resolution 53". Docs.legis.wisconsin.gov. Retrieved December 2, 2013. 
  15. ^ Canvass Summary, Wisconsin State Elections Board, Fall General Election, November 7, 2006.
  16. ^ "Wisconsin amendment supreme court". Wkbt.com. November 14, 2013. Retrieved December 2, 2013. 
  17. ^ "State to reevaluate gay marriage ban". Badger Herald. May 14, 2009. Retrieved February 3, 2014. 
  18. ^ "Supreme Court accepts four new cases", Headlines Archive, Wisconsin Court System, May 21, 2009.
  19. ^ Magnum, Christopher (November 3, 2009). "Wis. Supreme Court Hears Gay Marriage Case". The Advocate. Retrieved February 3, 2014. 
  20. ^ Marley, Patrick (November 3, 2009). "State Supreme Court hears arguments on gay marriage amendment". Milwaukee Journal Sentinel. Retrieved February 3, 2014. 
  21. ^ Foley, Ryan J. (June 30, 2010). "Wisconsin Supreme Court unanimously upholds gay marriage ban". Wisconsin State Journal. Retrieved March 12, 2014. 
  22. ^ Geidner, Chris (February 3, 2014). "ACLU Filing Lawsuit In Wisconsin Seeking Marriage Equality". Buzz Feed. Retrieved March 12, 2014. 
  23. ^ Johnson, Chris (February 3, 2014). "Wisconsin latest state to face marriage lawsuit". Washington Blade. Retrieved February 3, 2014. 
  24. ^ Wolf v. Walker, 14-cv-64-bbc, (W.D. Michigan June 6, 2014) p 3
  25. ^ "Gay couples get licenses in 42 Wisconsin counties". Seattle Post-Intelligencer. June 9, 2014. Retrieved June 9, 2014. 
  26. ^ Johnson, M.L. (June 7, 2014). "Gay couples rush to marry at Wisconsin courthouses". AP News. Retrieved June 7, 2014. 
  27. ^ Marley, Patrick; Ferguson, Dana (June 12, 2014). "Van Hollen: Clerks issuing licenses to gay couples could be charged". Milwaukee Journal Sentinel. Retrieved June 13, 2014. 
  28. ^ Crabb, Barbara (U.S. District Judge) (June 13, 2014). "Opinion and Order, Wolf v. Walker, No. 14-cv-64-bbc". U.S. District Court for the Western District of Wisconsin (Scribd.com). PACER Document 134. 
  29. ^ "State appeals ruling allowing gay marriages". Post Crescent. AP. July 10, 2014. Retrieved July 10, 2014. 
  30. ^ Marley, Patrick (July 11, 2014). "Appeals court to fast track state's gay marriage case with Indiana's". Milwaukee Wisconsin Journal-Sentinel. Retrieved July 14, 2014. 
  31. ^ Johnson, Chris (September 4, 2014). "7th Circuit rules against marriage bans in Wisconsin, Indiana". Washington Blade. Retrieved September 4, 2015. 
  32. ^ Geidner, Chris (September 9, 2014). "Indiana, Wisconsin Officials Take Marriage Cases To Supreme Court". BuzzFeed News. Retrieved September 16, 2014. 
  33. ^ Stein, Jason (September 18, 2014). "Wisconsin's gay marriage ban to stay in place until U.S. Supreme Court rules". Milwaukee Wisconsin Journal-Sentinel. Retrieved September 18, 2014. 
  34. ^ Liptak, Adam (6 October 2014). "Supreme Court Clears Way for Gay Marriage in 5 States". New York Times. Retrieved 6 October 2014. 
  35. ^ October 6 2014 - Wisconsin Department of Justice - Office of the Attorney-General
  36. ^ Ksicinski, Paul (Attorney for Plaintiffs) (April 16, 2014). "Petition for Declaratory and Injunctive Relief, Halopka-Ivery v. Walker, No. 2014AP000839-OA". Wisconsin Supreme Court via Scribd. Retrieved May 14, 2014. 
  37. ^ "Wis. Supreme Court declines to hear same-sex marriage case". Lgbtqnation.com. May 27, 2014. Retrieved August 21, 2014. 
  38. ^ a b "WI bullish on Packers, hate Favre, want Dem-controlled Sen." (PDF). Retrieved December 2, 2013. 
  39. ^ a b "Wisconsin narrowly opposes gay marriage" (PDF). Retrieved December 2, 2013. 
  40. ^ a b "Marquette Law School Poll shows Walker in tight race with Burke for Wisconsin governor in 2014". Law.marquette.edu. October 29, 2013. Retrieved December 2, 2013. 
  41. ^ a b "Clinton would beat Walker, Ryan in Wisconsin in 2016" (PDF). Retrieved December 2, 2013. 
  42. ^ a b "Clinton leads Ryan, Walker in Wisconsin" (PDF). April 24, 2014. Retrieved April 24, 2014. 
  43. ^ a b New Marquette Law School Poll finds Wisconsin governor’s race tied
  44. ^ "Wisconsin Survey Results". May 19–22, 2011. Retrieved December 2, 2013. 

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