Same-sex marriage has been legally recognized in Wisconsin since October 6, 2014, upon the resolution of a lawsuit challenging the state's ban on same-sex marriage. On October 6, the U.S. Supreme Court refused to hear an appeal of an appellate court ruling in Wolf v. Walker that had found Wisconsin's ban on same-sex marriage unconstitutional. The appellate court issued its order prohibiting enforcement of the state's ban on same-sex marriage the next day and Wisconsin counties began issuing marriage licenses to same-sex couples immediately.
Contents
- Statute
- Constitution
- McConkey v Van Hollen
- Wolf v Walker
- Halopka Ivery v Walker
- Obergefell v Hodges
- References
The constitution of Wisconsin had precluded state recognition of same-sex marriages and prohibited the establishment of any similar legal status under another name since 2006, when 59% of voters ratified a constitutional amendment defining marriage so as to exclude same-sex couples. The state's constitution and statutes previously contained no similar restrictions. A federal lawsuit filed in February 2014, Wolf v. Walker, challenged Wisconsin's refusal to grant marriage licenses to same-sex couples, its refusal to recognize same-sex marriages established in other jurisdictions, and related statutes. In June 2014, Judge Barbara Crabb of the U.S. District Court for the Western District of Wisconsin ruled for the plaintiffs and in the week before she stayed her decision county clerks in 60 of the state's 72 counties issued marriage licenses to same-sex couples and some performed marriage ceremonies for them. The state appealed her decision to the Seventh Circuit Court of Appeals, which affirmed her decision on September 4 and later stayed implementation of its ruling until the U.S. Supreme Court decided whether to consider the case.
Public opinion polls since voters adopted the constitutional amendment in 2006 report a trend in favor of legal recognition of same-sex relationships.
Statute
Legislation that the Family Research Institute (FRI) called a "statutory endorsement of traditional marriage" was proposed in the legislature in 1997. It passed the Assembly on a 78–20 vote, but the Senate took no vote on the measure. Legislation in support of same-sex marriage was also proposed that year, but was not voted on by either chamber.
A bill banning same-sex marriage was introduced in the Assembly on August 17, 2003, and approved on a vote of 68–29 on October 23. The Senate passed the bill by a vote of 22–10 on November 5. Governor Jim Doyle vetoed the legislation on November 10, 2003. The Assembly failed to override the Governor's veto by one vote, 63–33, on November 12.
Wisconsin also has a marriage evasion law, which established criminal penalties of up to nine months imprisonment and a fine up to $10,000 for leaving the state to contract a marriage that would not be valid in the state. According to a spokesperson for Lambda Legal in 2008, several states had similar laws, but Wisconsin's provided the harshest penalties. The applicability of the law to same-sex marriages was disputed, since it was designed to prevent fraud on the part of someone too young to marry legally in Wisconsin.
Constitution
On March 5, 2004, the Assembly approved a state constitutional amendment by a vote of 68–27, that read:
Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.
The Senate approved the same language by a 20–13 vote on March 12, completing the first of two legislative approvals required to place the amendment on the ballot. The Senate approved the proposed amendment again on December 6, 2005, voting 19–14 along party lines. The Assembly did the same on February 28, 2006, by a vote of 62-31. The question appeared as a referendum on the statewide ballot for the 2006 general election on November 7, 2006, and voters approved the amendment by a margin of 59.4% to 40.6%.
McConkey v. Van Hollen
William McConkey, a political science instructor filed a lawsuit, McConkey v. Van Hollen, on April 9, 2009, in Wisconsin Supreme Court charging that Wisconsin Referendum 1 (2006), which banned both same-sex marriage and civil unions in the state, violated the state's constitution because it proposed more than one question in a single ballot proposal, which is illegal under Wisconsin law. On May 14, the Court agreed to hear the case, specifying two questions, whether McConkey, as an individual voter, has standing to sue and whether the ballot initiative presented two questions. Wisconsin Attorney General J. B. Van Hollen challenged McConkey's standing. The Court heard oral arguments on November 3. On June 30, 2010, the Wisconsin Supreme Court ruled 7–0 in McConkey that the ballot measure was proper.
Wolf v. Walker
On February 3, 2014, the American Civil Liberties Union (ACLU) and the law firm of Mayer Brown filed a lawsuit in U.S. District Court for the Western District of Wisconsin on behalf of four same-sex couples, including a lesbian couple married in Minnesota in 2013. It challenged the state constitution's denial of marriage rights to same-sex couples and the state statute that provides criminal penalties for leaving the state to establish a marriage that is not valid in Wisconsin. The suit named Governor Scott Walker, several state officials, and two county clerks as defendants.
The case was assigned to U.S. District Judge Barbara Brandriff Crabb, who ruled on June 6, 2014, that the state's constitutional and legislative restrictions on same-sex marriage interfere with the fundamental right to marry, violating the due process clause of the Constitution of the United States, and discriminate on the basis of sexual orientation, violating the equal protection clause.
In response to the decision, though Crabb had yet to issue any order enforcing it, county clerks in increasing numbers began issuing marriage licenses to same-sex couples and in some cases performing marriage ceremonies for them. On June 13, after a week of legal maneuvering and a threat of legal action against the clerks on the part of Wisconsin Attorney General J. B. Van Hollen, Crabb stayed enforcement of her decision while expressing disappointment that recent action by the U.S. Supreme Court in the case of Herbert v. Kitchen compelled her to do so.
On July 10, the state appealed the decision to the Seventh Circuit Court of Appeals, which combined the case for briefing and oral argument with a similar Indiana case, Baskin v. Bogan, and scheduled oral arguments for August 26. On September 4, the Seventh Circuit, in a unanimous opinion authored by Judge Richard Posner, upheld the district court decision. On September 9, Wisconsin Attorney General Van Hollen asked the U.S. Supreme Court to consider the case. The Seventh Circuit stayed enforcement of its ruling on September 18. On October 6, 2014, the U.S. Supreme Court denied review of this case, allowing the Circuit Court's ruling to take effect.
Attorney-General J.B. Van Hollen responded by stating: "the Seventh Circuit affirmed the District Court’s decision holding Wisconsin’s Marriage Protection Amendment unconstitutional, and the Supreme Court has declined the opportunity to examine that decision. It is now our obligation to comply with those court decisions."
Same-sex couples began marrying in Wisconsin the following day (October 7, 2014) after the Seventh Circuit Court and District Court issued its mandates.
Halopka-Ivery v. Walker
On April 16, 2014, a lesbian couple married in California sought original jurisdiction in the Wisconsin Supreme Court. They claimed the state's "parallel civil marriage and domestic partnership structure" denied them access to federal benefits. They also challenged Wisconsin's statute imposing criminal penalties on residents who contract in other jurisdictions a marriage that is not recognized by the state. On May 27, 2014, the state supreme court, on a 5–2 vote, declined to hear the case.
Obergefell v. Hodges
On June 26, 2015 the U.S. Supreme Court ruled 5-4 in Obergefell v. Hodges that state bans on same-sex marriage were a violation of the 14th Amendment thus invalidating all remaining state same-sex marriage bans in the United States of America.