Jun 7, 2014

Marriage Equity Order Is Historic Win for Wisconsin and Civil Rights

Judge Mark Frankel performs a marriage for a family on the
steps of the Dane County Courthouse. @thenation @CapTimes
It is DECLARED that art. XIII, § 13 of the Wisconsin Constitution violates plaintiffs' fundamental right to marry and their right to equal protection of laws under the Fourteenth Amendment to the United States Constitution. Any Wisconsin statutory provisions, including those in Wisconsin Statutes chapter 765, that limit marriages to a "husband" and a "wife," are unconstitutional as applied to same-sex couples.
- Entered this 6th day of June, 2014.
District Judge
Dane County civil rights champions through generations
administer festive and historic weekend. From left are:
Scott McDonell, Dick Wagner, Mark Pocan and Joe Parisi 
Updated - Bigots on the run, as
Jubilation in Wisconsin Over Same-Sex Marriage Breaks Out

"[Judge Crabb] has made a finding, a declaration, that the law is unconstitutional. That means the law is void," said Wisconsin civil rights attorney, Lester Pines. (Wisconsin State Journal)
U.S. District Judge Barbara Crabb ruled that forbidding marriage equity and depriving citizens of the fundamental right to marry in Wisconsin is in violation of the U.S. Constitution, specifically the due process and equal protection clauses of the Fourteenth Amendment.

Republican Attorney General immediately filed for an emergency injunction to stay Judge Crabb's order.

County Clerks in Dane and Milwaukee Counties announced they will begin issuing marriage licenses to same-sex couples immediately after reading the order and opinion issued Friday, June 6. Pictured above-right is a marriage ceremony that took place Friday afternoon in front of Madison City Hall (photo by John Nichols).

By Saturday afternoon, it is estimated that 100s of Wisconsin couples would have married.

Judge Crabb ordered that the motion by Scott Walker and Attorney General J.B. Van Hollen to dismiss the case—Wolf, Schumacher et al v. Walker, Van Hollen et alis dismissed. (2014 U.S. Dist. LEXIS 77125)

Scott Walker's presumptive Democratic Party nominee for governor, Mary Burke, issued a statement in support of Judge Crabb's ruling and marriage equity: "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."

Reaction to the ruling from Democratic officeholders and candidates is universally positive.

"In our country's history, the courts have often been the place oppressed citizens go for justice. Usually, the system works, because, as a wise civil rights leader once said, 'the arc of the moral universe is long, but it bends towards justice.’ Today, we see justice," said Ron Zerban, Democratic candidate for Congress in the first congressional district.

Scott Walker issued a procedural statement on Judge Crabb's ruling GOP efforts to stay the order and opinion, shying away from a statement on the merits of the decision.

"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 Walker, ignoring the question about the Constitutionality of the Wisconsin double ban (in law and the state Constitution) on same-sex marriage.

Under Wisconsin law and under the Wisconsin Constitution, marriage was legally codified as solely between a man and woman.

Despite what Attorney General Van Hollen has said, marriage equity is now the law of the land in Wisconsin, though Walker and Van Hollen filed an emergency motion to stay Judge Crabb's order as marriage ceremonies commenced in Milwaukee and Dane counties.

Van Hollen said, "current law remains in force."

"We have reviewed the judge's ruling," Dane County Clerk Scott McDonell said to media before the first couple received their marriage license. "It overturned the constitutional amendment banning same-sex marriage. It did not instruct my office or any other office to not issue marriage licenses, so we plan on staying open until 9 tonight and from 9 to 5 tomorrow.

Van Hollen is half wrong, and half irrelevant.

Crabb ordered:

"Plaintiffs may have until June 16, 2014, to submit a proposed injunction that complies with the requirement in Fed. R. Civ. P. 65(d)(1)(C) to 'describe in reasonable detail  [*125] . . . the act or acts restrained or required.' In particular, plaintiffs should identify what they want each named defendant to do or be enjoined from doing. Defendants may have one week from the date plaintiffs file their proposed injunction to file an opposition. If defendants file an opposition, plaintiffs may have one week from that date to file a reply in support of their proposed injunction."

The writing is on the wall and in judicial precedent.

"I conclude that the Wisconsin laws prohibiting marriage between same-sex couples interfere with plaintiffs’ right to marry, in violation of the due process clause, and discriminate against plaintiffs on the basis of sexual orientation, in violation of the equal protection clause," Judge Crabb writes.

Crabb said she will hear motions to stay her order as the Wolf case is adjudicated in the federal appellate courts. Crabb gave the parties until June 16 to submit documentation in support of motions to stay or let her ruling stand.

Crabb also addressed the irrational bigotry underlying the prohibitions against marriage equity, bigotry that advanced no legitimate state interest.

Writes Crabb:

In any event, a review of the various classifications that receive heightened scrutiny (race, sex, alienage, legitimacy) reveals a common factor among them, which is that the classification is seldom "relevant to the achievement of any legitimate state interest." Cleburne, 473 U.S. at 440. Under these circumstances, the classification is more likely "to reflect prejudice and antipathy," so courts should be more suspicious of the discrimination. Id. See also Pedersen, 881 F. Supp. 2d at 319 ("The ability to contribute to society has played a critical and decisive role in Supreme Court precedent both denying and extending recognition of suspect class to other groups."). Neither defendants nor amici offer an argument that sexual orientation would not meet that standard.

Accordingly, I conclude that sexual orientation discrimination is subject to heightened scrutiny. The Supreme Court has not explained how to distinguish a "suspect" classification from a "quasi-suspect" classification, but sexual orientation is most  [*84] similar to sex among the different classifications that receive heightened protection, Doe, 119 F.3d at 593 n. 27.

Because sex discrimination receives intermediate scrutiny and the difference between intermediate scrutiny and strict scrutiny is not dispositive in this case, I will assume that intermediate scrutiny applies, which means that defendants must show that Wisconsin's laws banning marriage between same-sex couples must be "substantially related" to the achievement of an "important governmental objective," Virginia, 518 U.S. at 524, to survive scrutiny under the equal protection clause. ...

Concludes Crabb:

It is well-established that "the Constitution protects persons, not groups," Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995), so regardless of possible future events affecting the larger community, my task under federal law is to decide the claims presented by the plaintiffs in this case now, applying the provisions in the Fourteenth Amendment as interpreted by the Supreme Court in cases such as Loving, Romer, Lawrence and Windsor. Because my review of that law convinces me that plaintiffs are entitled  [*124] to the same treatment as any heterosexual couple, I conclude that the Wisconsin laws banning marriage between same-sex couples are unconstitutional.
Madison, Wisconsin Cops Congratulate Newlyweds after
Marriage Equality Order. Photo: Gail Chodron

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