A federal judge Friday struck down Wisconsin’s constitutional ban on same-sex marriage, prompting scores of couples to immediately seek marriage licenses in Dane and Milwaukee counties despite confusion over whether the law was still in effect.
“Quite simply, this case is about liberty and equality, the two cornerstones of the rights protected by the United States Constitution,” U.S. District Judge Barbara Crabb wrote in her Friday ruling.
Crabb did not issue an immediate injunction barring the state from enforcing the law but gave the plaintiffs until June 16 to submit “in reasonable detail ... the act or acts restrained or required” and gave the state a week after that to reply.
But Dane County Clerk Scott McDonell and Milwaukee County Clerk Joe Czarnezki began issuing marriage licenses soon after the ruling was released Friday. One couple — Shari Roll and Renee Currie — had already arrived at the Dane County clerk’s office and were the first to get a license.
It feels good “to finally be accepted for just being us,” Roll said. After the couple received their license, they were married just outside of the City-County Building by officiant Mike Quieto. McDonell deputized numerous people to issue marriage licenses Friday, and several judges were on hand to officiate at ceremonies on the spot.
The rush to wed prompted Attorney General J.B. Van Hollen late Friday to file an emergency motion aimed at stopping the marriages, arguing that the order should be put on hold pending appeal.
“This is precisely the type of confusion and uncertainty that the state defendants intended to avoid by requesting a motion to stay,” he wrote in the motion.
But Lester Pines, a prominent Madison attorney who supports same-sex marriage rights, said the judge’s order makes clear that clerks can issue licenses immediately, even though no injunction has yet been issued.
“She has made a finding, a declaration, that the law is unconstitutional,” Pines said. “That means the law is void.”
A spokeswoman for Republican Gov. Scott Walker said, “It is correct for the attorney general, on this or any other issue, to defend the constitution of the state of Wisconsin, especially in a case where the people voted to amend it.”
In a statement, Walker’s Democratic challenger for governor Mary Burke said: “Today is a great day for Wisconsin and committed couples who love each other across the state. Every loving couple should have the freedom to marry whomever they choose, and the fact that this freedom is now available in Wisconsin is something we all can and should be proud of.”
A ‘more beautiful day’
The American Civil Liberties Union had challenged the state’s constitutional ban, adopted after a statewide referendum in 2006, on behalf of eight same-sex couples. Kristin Hansen, development director for the ACLU, joined some of the couples involved in the lawsuit on the State Street steps of the Capitol, where she and others applauded the court’s ruling. Standing in the bright sunshine, she called it a beautiful day that had become an even “more beautiful day.”
“We just don’t think that the majority should vote on the civil rights of the minority,” Hansen said.
Two of the eight couples who are plaintiffs in the suit also cheered the ruling. “We’re so excited to finally put this part of our relationship — this unmarried part of our relationship — to the side, to move forward,” said Pam Kleiss, 49, of Madison, a secretary at UW Hospital.
She held hands with her partner, Salud Garcia, 51, a bakery worker, who thanked the ACLU for taking on the case “when everyone else turned their backs and thought this case was unwinnable.”
Another plaintiff couple, also from Madison, said they were married in Canada seven years ago but became unmarried in the eyes of Wisconsin when they moved here.
“To have the state of Wisconsin finally recognize that we are married, have been married and will always be married under the law feels fantastic, absolutely fantistic,” said Keith Borden, 41, a yoga instructor. His husband, Johannes Wallmann, 39, is director of jazz studies at UW-Madison.
Two other plaintiffs, Kami Young and Karina Willes, of West Milwaukee, were legally married last year in Minnesota and have a newborn daughter. But because Young is the birth mother, she is the only one who is recognized as the legal parent on the birth certificate.
“Our daughter has two parents who love her dearly,” Willes said in a statement. “I am no less a mother to her than Kami is, and she deserves the security of having both of her parents legally recognized Our daughter shouldn’t have second-class protections.”
Madison police Officers Matt Kenny and Zach Kimbrew saw the party at the City-County Building in Madison and came back with three cakes from HyVee. Another Madison police officer, Sue Carnell, gave away pieces.
About a dozen people were performing weddings on the steps of the City-County Building, including four Dane County Circuit Court judges: Rhonda Lanford, Ellen Berz, Peter Anderson and Shelley Gaylord. Many of the others were Dane County court commissioners.
Berz, who was helping coordinate the officiants, said about 30 judges and court commissioners offered their services.
A few blocks from the celebratory hoopla at the City-County Building, Jennifer Dunnett prayed quietly at Holy Redeemer Catholic Church. She asked God, she said, to keep things as they were, with the ban in place.
“It doesn’t mean I dislike or hate anyone,” said Dunnett, 41, of Marshall, an anti-abortion advocate for the group Servants of Our Lady of Guadalupe. “I just feel Wisconsin residents already voted on this.”
Madison Catholic Bishop Robert Morlino said that he was “deeply saddened” by the ruling and that the court had “shaken one of the most precious and essential building blocks of our civilization.”
Equal citizenship key
In an introduction to her decision, Crabb wrote that she did not intend to disparage those who voted in good conscience for the marriage amendment.
The case also is not about religion or morality, she wrote, or about whether same-sex couples are “as capable as opposite-sex couples of maintaining a committed and loving relationship or raising a family together.”
But “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.”
“If the state is going to deprive an entire class of citizens of a right as fundamental as marriage, then it must do more than say, ‘this is the way it has always been’ or ‘we’re not ready yet,’” she wrote.
She wrote that concerns expressed by the state and others that allowing same-sex couples to marry may harm children or the institution of marriage were not substantiated in their briefs.
“Under these circumstances,” Crabb wrote, “personal beliefs, anxiety about change and discomfort about an unfamiliar way of life must give way to a respect for the constitutional rights of individuals, just as those concerns had to give way for the right of Amish people to educate their children according to their own values, for Jehovah’s Witnesses to exercise their religion freely, and for interracial couples to marry the person they believed was irreplaceable.
“In doing this, courts do not ‘endorse’ marriage between same-sex couples, but merely affirm that those couples have rights to liberty and equality under the Constitution, just as heterosexual couples do.”
20th consecutive ruling
The decision marked the 20th consecutive ruling by a state or federal judge finding same-sex marriage bans unconstitutional, Evan Wolfson, president of Freedom to Marry, said in a statement.
“Across the country, the courts agree: same-sex couples and their families need the dignity of marriage, and anti-marriage laws are indefensible. With over 70 marriage cases now making their way through the courts, today’s decision in Wisconsin underscores that all of America is ready for the freedom to marry. It’s time now for the Supreme Court to bring resolution nationwide.”
Julaine Appling, president of Wisconsin Family Action, which filed a brief in support of the state’s position, was furious with Friday’s ruling.
“I think it’s extremely disappointing,” Appling said, saying same-sex marriage supporters had taken the “chicken” way out by “running to the courts” rather than going to a vote by Wisconsinites.
“When did ‘we the people’ become ‘I the judge?’” Appling said. “When did marriage between a man and a woman become unconstitutional?”
In her opinion, Crabb wrote that she would wait to address the state’s pending motion to issue a stay of any injunction until after materials on the proposed injunction are filed. She wrote that both sides could supplement what they’ve already submitted on the motion.
Larry Dupuis, ACLU of Wisconsin legal director, said he hopes to submit a proposed order to the judge Monday.“The judge didn’t order the clerks to do or not to do anything at this point,” Dupuis said.“She’s asking us to propose an order to tell the clerks what to do or not to do. The clerks have interpreted the fact that the judge declared the marriage ban unconstitutional, apparently they’ve taken that to mean they can start issuing licenses. I’m not purporting to disagree with them — I’m not their lawyer — and I’m not the lawyer for couples who are going to get those licenses.
“In Utah, the marriages that took place between the time that the court declared Utah’s version of the anti-marriage amendment unconstitutional and when a stay was put in place, a federal judge there ordered that those marriages be recognized like any other marriage. That’s what I would hope and expect would happen with the marriages that are happening now.”Dupuis called Crabb’s decision “airtight.”“Some of what she’s done, I think, is very cautious and airtight, in a way that some of the other decisions haven’t necessarily been. Some have had more rhetorical flourishes, but hers is very workmanlike.”
—State Journal reporters Mary Spicuzza, Matthew DeFour, Ed Treleven, Doug Erickson, Molly Beck, Steven Verburg and Gayle Worland contributed to this report.