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.
“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.”