Despite gay marriage victories elsewhere, Wisconsin's ban faces no legal challenges

2013-12-27T08:30:00Z Despite gay marriage victories elsewhere, Wisconsin's ban faces no legal challengesJASON JOYCE | The Capital Times | jjoyce@madison.com madison.com

Marc Solomon, the national campaign director for Freedom to Marry, a group that advocates for gay marriage, has a hard time counting the victories for his movement in 2013.

“It’s been an amazing year,” says Solomon. “It’s the gift that keeps on giving.”

He lists the states that have legalized same-sex marriage along with those where judicial decisions on lawsuits led to the overturning of “marriage protection” laws or constitutional amendments banning same-sex marriage.

The most recent decision came last week in Utah, where U.S. District Court Judge Robert Shelby, a Fort Atkinson native, struck down that state’s same-sex marriage ban and refused to issue a stay, which would have allowed the constitutional amendment to remain in place as his decision is appealed.

The state is now appealing to the U.S. Supreme Court, but in the absence of a stay, the result has been a flood of gay and lesbian couples rushing to courthouses throughout the state to get married.

“I’m looking at pictures of Boy Scouts in Utah bringing pizza to county clerks who are working over lunch to provide marriage licenses to gay couples,” says Solomon. “It’s a new world out there.”

For the moment, that “new world” does not include Wisconsin, where a constitutional amendment adopted in 2006 that defines marriage as solely between one man and one woman remains on the books. Despite its similarity to the Utah amendment, it currently faces no legal challenges.

“As closely as we watch these things, I can’t tell you why there isn’t one here,” says Julaine Appling, president of Wisconsin Family Action, a group that pushed for the amendment and opposes any challenges to it. “I can say that we remain on high alert for such challenges.”

Appling believes recent legal victories for gay marriage advocates are less representative of a groundswell of support than an orchestrated legal strategy.

“It is our opinion that, for the most part, people seeking to challenge these amendments look around carefully for where they want to challenge and before what judges they want to challenge these,” says Appling.

While enthusiastically endorsed by Republican U.S. Sens. Orrin Hatch and Mike Lee of Utah, Judge Shelby was appointed to the bench by President Barack Obama.

Appling also points to the U.S. Supreme Court’s decision this summer that ordered the federal government to recognize same-sex marriages performed in states where they are legal.

“Obviously, the Supreme Court opened the door for all of these with their decision in June on the Defense of Marriage Act in striking down that one portion of it,” says Appling. Justice "Antonin Scalia called it exactly right when he said ‘you just opened the door, majority opinion on the court, for legal challenges, really, in any given state.’”

In order for there to be such a challenge in Wisconsin, there will have to be a suit. To date, it has not been the strategy of Fair Wisconsin, the state’s gay marriage advocacy group, to pursue that strategy.

Instead, Fair Wisconsin has been focused on pushing for domestic partner ordinances at the local level. These have been found to be “substantially different than marriage” by a state appeals court and, therefore, recognized by employers for the purpose of domestic partner benefits. The state Supreme Court is deliberating the constitutionality of domestic partnerships now.

“It might seem passé to still be defending such a limited set of legal protections when so many similar states now have full marriage equality, but the outcome of that case could have a tremendous impact on potential future litigation on the issue of marriage equality in Wisconsin," says Megin McDonell, external relations director for Fair Wisconsin.

Solomon agrees.

“People in Wisconsin can, today, go to one of the freedom-to-marry states, very close by, and marry, come back home and receive most of the federal protections and benefits,” he says. “The other thing is … to demonstrate that Wisconsin is ready, that means enlisting Republicans and mayors and business leaders to our side because ultimately, to win this nationwide, we don’t have to win every state … We have to win enough states and demonstrate enough public support so that the Supreme Court realizes the next time a case gets to them that the nation is ready and it rules in our favor. So there’s still work on the ground to do in Wisconsin.”

Appling is similarly motivated in her efforts against gay marriage.

In his decision, Shelby said "there was a fundamental right to marry, which we categorically reject,” says Appling. “Secondly, he says the Utah marriage amendment is basically about demeaning people in same-sex relationships. And thirdly he says that they do so with no rational basis. We categorically reject all three of those."

Gay marriage advocates "can push back, but it’s not like we entered this fray yesterday. We’ve been in it for 20-some years. But that’s the truth, what I just told you. Whether they choose to believe that or not, is a different story. But marriage is not a fundamental right. Number two, nobody is talking about demeaning. Number three, there is a rational basis for the protection of traditional marriage, and that rational basis rests squarely on the fact that the next generation needs a mom and a dad.”

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(16) Comments

  1. DaTruth
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    DaTruth - December 27, 2013 5:26 pm
    A&E caved and Phil is back on the show. The battle is not over.
  2. BadgerFan12345
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    BadgerFan12345 - December 27, 2013 2:33 pm
    Those fighting against marriage equality are fighting a losing battle. Gay marriage will be legal everywhere soon. Equality is a good thing.
  3. PapaLorax
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    PapaLorax - December 27, 2013 12:37 pm
    right - so current politics here would make state change impossible...meaning we need to have a federal forcing function. That is coming. No reason to take the time and effort to file more federal cases.
  4. DaTruth
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    DaTruth - December 27, 2013 12:34 pm
    Are you going to help Shirley write her dissent for the 5-2 opinion about to be delivered?
  5. Lester Pines
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    Lester Pines - December 27, 2013 12:21 pm
    No state constitution or statute can trump rights that are protected by the United States Constitution. If state bans on same sex marriage are found by the United States Supreme Court to violate the 14th amendment to the United States Constitution, which guarantees everyone the equal protection of the law, then all such state bans, whether found in states laws or state constitutions, will be unenforceable.
  6. PapaLorax
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    PapaLorax - December 27, 2013 12:09 pm
    I assure you all these people are lining up to get married just to pay more in taxes...
  7. DaTruth
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    DaTruth - December 27, 2013 10:36 am
    Nope. If it were important for him/her to marry a person of the same sex, I would encourage him to move to a state where that is legal. I would discourage him from overturning a constitutional amendment. Why wouldn't he/she want to live in a place where his choice was supported?
  8. wrkrbee1
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    wrkrbee1 - December 27, 2013 10:28 am
    I've said it before, I'll say it again. the government shouldn't be involved in marriage, period. it's a religious bond. the only reason government got involved is so they could tax it... hence the marriage tax penalty (yes folks, it's a penalty). Get the government out of marriage, and this becomes a non-issue. I know, wishful thinking on my part.
  9. OscarD
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    OscarD - December 27, 2013 10:11 am
    and like all hypocritical tea party members, when one of DAT's sons or daughters wants to marry their same sex partner , he will be all over that, just like Dick Cheney.
  10. geo_
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    geo_ - December 27, 2013 10:10 am
    Their decision wasn't based on popular opinion, it was based on American traditions and morals. You know the ones that say " All men are created equal", "Liberty and Justice for All" and "Life, Liberty and the Pursuit of Happiness" If you don't believe in America, please leave.
  11. Jason Joyce Staff
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    Jason Joyce - December 27, 2013 9:27 am
    While "DaTruth" admittedly uses language meant to provoke, he's absolutely right. Those favoring the right for gay and lesbian couples to marry in Wisconsin are not in a good place right now. The state is surrounded (Illinois, Iowa and Minnesota) by communities that have no such bans and some predict that will be to Wisconsin's economic detriment. Even though it's clear that public opinion is decidedly moving in the direction of supporting gay marriage by wider margins each year, the Wisconsin state Legislature is not interested, and neither is the governor. We should also acknowledge that the judicial branch, like the legislative and executive, is a means to an end and pursuing goals there is as legitimate as it is with any of the other branches.
  12. Fartinthewind
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    Fartinthewind - December 27, 2013 8:47 am
    Wow dafabricator. You set me straight. I didn't realize that the Supreme Court was supposed to care about the will of the people. I always thought the supreme court was supposed to care about the state constitution.

    Silly me. Thanks. Only a wise conservative like you could set the rest of us straight. Pun intended.
  13. DaTruth
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    DaTruth - December 27, 2013 8:13 am
    Doyle's end-around of the will of the people of WI will be un-done, soon, by a state Supreme Court caring more about the will of the people than a minority of loud and obnoxious gay rights supporters. If you really think a majority of people want gay marriage in this state, get a majority in the Assembly, Senate and a Dem Governor, pass the bill twice, and give it to the people. Judge-shopping is lazy and unfair.
  14. B-Man
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    B-Man - December 27, 2013 7:29 am
    Since when does the United States Supreme Court base its decisions on popular opinion?
  15. CuteKitten
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    CuteKitten - December 27, 2013 7:13 am
    Appling is just a horrible human being.
  16. Studio Indigo
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    Studio Indigo - December 27, 2013 6:53 am
    Legalizing gay marriage is such a no brainer. In fact, it's such a no brainer it's becoming a non issue. Appling and her crew are definitely in the minority on this issue and I hope this will be changing in Wisconsin soon. It's kind of embarrassing it hasn't yet.
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