It could be up to the U.S. Supreme Court to decide whether gay couples in Wisconsin or elsewhere can marry, legal experts said in the wake of a lawsuit filed last week against the state’s same-sex marriage ban.
There are roughly four dozen legal actions in 20 states challenging measures that limit marriage to one man and one woman, according to Larry Dupuis, legal director for the American Civil Liberties Union of Wisconsin, which filed the lawsuit Monday in U.S. District Court in Madison.
The other challenges are further along than Wisconsin’s, Dupuis said, and it’s anyone’s guess which one would make it to the high court.
But, said John Knight of the ACLU’s Gay Lesbian Transgender Project, “We expect that this issue will end up in the U.S. Supreme Court very soon.”
Rick Esenberg, an attorney representing Wisconsin Family Action, which is challenging the state’s domestic partner registry, agreed.
“I think that the likelihood that a case will get to the U.S. Supreme Court is high,” he said.
The lawsuit filed in Wisconsin alleges that the state constitutional amendment banning gay marriage and other civil unions violates the U.S. Constitution. It charges that gay couples in Wisconsin are denied the “fundamental” freedom to marry, violating the constitutional guarantee of equal treatment under the law.
The action was brought on behalf of four couples — one from Madison, one from Eau Claire and two from Milwaukee — who want the right to legally wed in Wisconsin. One couple, Carol Schumacher and Virginia Wolf of Eau Claire, were married in Minnesota in December, but their union is not legally recognized in Wisconsin. They’ve been together for 38 years, raising two children and are now grandparents to four children.
Republican Attorney General J.B. Van Hollen has said he will “vigorously defend” Wisconsin’s constitutional ban, which passed two Legislatures and was approved in 2006 by 59 percent of voters. He called the amendment “clearly constitutional.” And Republican Gov. Scott Walker said last week he sees no “significant movement” toward changing the status quo.
But if Wisconsin has a change in political leadership — if a Democrat replaces the retiring Van Hollen and Walker loses to Democratic rival Mary Burke this fall — the state could be in the position of refusing to defend its own marriage ban next year.
Court ruling influential
Massachusetts was the first state to allow gay marriage in 2003, and for many years, it was the only state. Now, 17 states and the District of Columbia allow it, nine of them switching to allow same-sex marriages in 2013 alone.
The main trigger for the rapid expansion of gay marriage was a June decision by the U.S. Supreme Court that raised questions about all same-sex marriage bans, said Andrew Coan, a UW-Madison associate law professor.
The decision in that case overturned the federal Defense of Marriage Act. That law denied federal benefits, such as military pensions, to same-sex spouses, even if couples were legally married in their home states.
That ruling “did not declare state same-sex marriage bans unconstitutional, but its reasoning raised serious questions about them,” said Coan, whose specialties include constitutional law and civil rights.
It’s harder to predict whether the U.S. Supreme Court will decide the fate of laws in all 33 states, including Wisconsin, where gay marriage is illegal, Coan said. The Defense of Marriage Act, he noted, was overturned by a split 5-4 vote.
“Justice Anthony Kennedy will almost certainly cast the deciding vote, and his sympathies are divided,” Coan said. “He is strongly committed to the equal dignity of same-sex couples. But he is also committed to the authority of states to set their own marriage policy.”
Esenberg agreed Kennedy would be the key on the divided court.
In his opinion rejecting the Defense of Marriage Act, Kennedy hinted that Congress had no “rational basis” for excluding federal benefits from legally married couples just because they are of the same gender. That bodes well for proponents of gay marriage, said Esenberg, executive director of the conservative Wisconsin Institute for Law and Liberty.
But the calculation could change if Kennedy is asked to look at a single state’s right to regulate marriage, he said. Esenberg noted that Kennedy was critical of Congress injecting itself in an issue “that is normally handled on the state level.”
And states, including Wisconsin, could argue they have a legitimate interest in maintaining the status quo.
Esenberg said states could argue that by extending the definition of marriage to include people of the same gender, other rules could unravel: that marriage is between two people, that it’s meant to be permanent or that partners are expected to have exclusive sexual relations.
“You shouldn’t think that you can just mess with things and assume everything will just work out,” Esenberg said. “The question isn’t, ‘Judge, do you agree with this law?’ The question is, ‘Is this law so irrational that no reasonable people could agree with it?’ “
Growing public acceptance
Coan said another factor in whether the definition of marriage changes in Wisconsin and elsewhere is the rapidly growing public acceptance of gay marriage.
National polls show a majority of people now support broadening marriage to include spouses of the same gender. And in Wisconsin, a majority, 53 percent, favor gay marriage, 24 percent favor civil unions, with just 23 percent opposed to any legal recognition, according to the October Marquette University Law School Poll.
Public attitudes can influence public policy makers and judges — both elected and appointed, Coan said. And that will likely spur more states to legalize gay marriage, he said.
“Evolving public attitudes make it more likely that state legislatures and elected state judges will recognize same-sex marriage,” he said. “Historical evidence also suggests that public attitudes influence unelected federal judges, including those on the U.S. Supreme Court.”
But there is a sharp political divide on gay marriage. Nationally, 73 percent of self-described liberals and 58 percent of moderates favor allowing gays to marry, but just 30 percent of conservatives do, according to the Pew Research Center.
That split is mirrored in Wisconsin’s political leadership. Van Hollen is defending the ban, and so would Republican attorney general candidate Brad Schimel if he’s elected.
“I believe the power to define marriage lies with the states, and the role of attorney general is to defend the state’s laws and Constitution,” the Waukesha County district attorney said. “Therefore, I would defend the constitutional amendment.”
But two Democrats vying for the seat, state Rep. Jon Richards of Milwaukee and Dane County District Attorney Ismael Ozanne, say they would not defend it. Ozanne said, “I don’t believe there is a good faith basis” to defend the amendment.
Richards said his obligation would be to uphold the constitutional rights of Wisconsin residents, rights that he said “are currently being violated for same-sex couples.”
Burke, the governor’s Democratic challenger, said she also sides with the ACLU on this issue.
“I completely support people’s freedom to choose who they would like to marry,” she said
For plaintiffs Garth Wangemann and Roy Badger of Milwaukee, change can’t come soon enough. The two have been a couple for 37 years.
They met on election day, Nov. 7, 1976. The relationship immediately developed between the two men even though, Wangemann noted with amusement, Badger voted for Republican Gerald Ford while he backed Democrat Jimmy Carter.
“Wisconsin has been my home for my entire life,” Wangemann said. “I love this state, and all I want is to have my love for my partner validated as we head into the twilight of our lives.”