June 6, 2014 | by Chris Johnson
Court strikes down Wisconsin same-sex marriage ban
gavel, gay news, Washington Blade, justice

A federal judge has struck down Wisconsin’s ban on same-sex marriage (Photo by Bigstock).

A federal judge in Wisconsin struck down on Friday the state’s ban on same-sex marriage as unconstitutional, making for the latest in a string of victories in the courts for marriage-equality supporters.

In the case of Wolf v. Walker, U.S. District Judge Barbara Crabb ruled that Wisconsin’s 2004 constitutional ban on gay nuptials violates the rights of plaintiff same-sex couples on the basis of established precedent following the U.S. Supreme Court’s ruling against the Defense of Marriage Act.

“Because my review of that law convinces me that plaintiffs are entitled to the same treatment as as any heterosexual couple, I conclude that Wisconsin laws banning marriage between same-sex couples are unconstitutional,” Crabb writes.

In her 88-page ruling, Crabb, a Carter appointee, makes significant use of the U.S. Supreme Court’s decision against DOMA as part of her reasoning leading to her determination that the marriage is unconstitutional.

“In light of Windsor and the many decisions that have invalidated restrictions on same-sex marriage since Windsor, it appears that courts are moving toward a consensus that it is time to embrace full legal equality for gay and lesbian citizens,” Crabb said. “Perhaps it is no coincidence that these decisions are coming at a time when public opinion is moving quickly in the direction of support for same-sex marriage.”

It wasn’t immediately clear whether same-sex couples could marry immediately in Wisconsin. On one hand, the court ruled the law is unconstitutional. On the other, Crabb indicates more action is necessary because she invites plaintiffs to submit a proposed injunction as a result of the ruling and says she’ll address a stay request already submitted by the state at a later time.

The judge gives plaintiffs until June 16 to submit a proposal. Then, state officials have one week after the proposed injunction is filed to respond to that request. If a state response is filed, plaintiffs have one week to reply, the judge ruled.

As far as a stay, Crabb says she’ll consider the motion after the parties have had an opportunity to submit proposed injunctions. She also gives them until June 16 to submit additional material in light of the court ruling against Oregon’s ban on same-sex marriage.

According to the Associated Press, Milwaukee County Clerk Joe Czarnezki said he was keeping his office open while an attorney reviewed the decision in case he could begin accepting marriage licenses Friday evening.

In a statement, Wisconsin Attorney General J.B. Van Hollen pledged to appeal the ruling to the U.S. Seventh Circuit Court of Appeals.

“As Attorney General, I have an obligation to uphold Wisconsin law and our Constitution,” Van Hollen said. “While today’s decision is a setback, we will continue to defend the constitutionality of our traditional marriage laws and the constitutional amendment, which was overwhelmingly approved by voters. I will appeal.”

Moreover, Hollen said his interpretation of the ruling is that no county clerks are able to marry same-sex couples for the time being.

“Importantly, current law remains in force,” Van Hollen said. “I am encouraged by the District Court’s refusal to issue an immediate injunction. We have seen the disruption to couples and families throughout the United States when courts have first allowed same-sex marriage only to have those marriages subsequently called into question by another court. I anticipate the United States Supreme Court will give finality to this issue in their next term.”

The position of Wisconsin attorney general is up grabs during Election 2014. Van Hollen said he hopes whoever succeeds him will continuing defending the same-sex marriage ban in court.

“I will continue defend our Constitution and law in whatever forum is appropriate and I would hope my successor will fulfill this same oath and obligation,” Van Hollen said.

Gov. Scott Walker said through a spokesperson he’s behind the attorney general in his efforts, but didn’t offer full-throated support of the ban in the moderate state as he seeks re-election.

“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,” said Laurel Patrick, a Walker spokesperson.

The lawsuit was filed in February was filed on behalf of eight same-sex couples seeking marriage rights in Wisconsin by the American Civil Liberties Union, the ACLU of Wisconsin and Mayer Brown LLP. Some of the couples were seeking the right to marry; others were seeking to have Wisconsin recognize a marriage that was performed elsewhere.

John Knight, staff attorney with the ACLU Lesbian Gay Bisexual & Transgender Project, said the ruling against Wisconsin’s ban on same-sex marriage has implications far beyond the state itself.

“Wisconsin’s constitutional ban on marriage for same-sex couples is a striking example of intentional discrimination towards lesbians and gay men in Wisconsin,” Knight said. “The marriage ban has sent a powerful message that same-sex couples are undeserving of the dignity and important legal protections associated with marriage. Judge Crabb’s decision that same-sex couples are equal under the law sends an entirely different message — one inviting and encouraging fair treatment and respect for these couples.”

Tony Perkins, president of the anti-gay Family Research Council, said Crabb’s ruling is the latest in a string of decisions from her that are affront to religious liberty in the country.

“Judge Crabb is well known for her attempts to banish God from the public square, and inferring that the Constitution demands a hostile treatment of religious expression in public life,” Perkins said. “Once again, she has neglected to consult the Constitution that she was sworn to uphold. This is why it’s not surprising that she would display similar contempt for the right of Wisconsin voters to preserve marriage as it has always been defined.”

In her ruling, Crabb acknowledges the differing views on marriage expressed by each of the parties in the case, but ultimately determines the Wisconsin law violates same-sex couples due process and equal protection rights under the Fourteenth Amendment of the U.S. Constitution.

“This case is not about whether marriages between same-sex couples are consistent or inconsistent with the teachings of a particular religion, whether such marriages are moral or immoral or whether they are something that should be encouraged or discouraged,” Crabb writes. “It is not even about whether the plaintiffs in this case are as capable as opposite-sex couples of maintaining a committed and loving relationship or raising a family together. Quite simply, this case is about liberty and equality, the two cornerstones of the rights protected by the United States Constitution.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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