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Wisconsin marriage equality ban challenged in new federal lawsuit

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Wisconsin state sealAs I’ve written several times recently–another day, another lawsuit.  The latest news comes from Wisconsin, where same-sex couples yesterday filed a federal complaint challenging both the state’s marriage equality ban and its penalties for couples seeking to marry outside of Wisconsin.  The Washington Blade reports:

The litigation seeks not only to overturn the state’s 2006 constitutional amendment barring same-sex marriage, but also to enjoin state official from enforcing a “marriage evasion law” prohibiting couples — gay and straight — from going elsewhere to marry if the marriage would be prohibited in the state.

The penalties of violating the marriage evasion law in Wisconsin, which is the only state to have such a statute, include up to $10,000 in fines and nine months in prison.

For Marie Carlson, one-half of one of the couples participating in the lawsuit, the marriage evasion law is of concern as she seeks recognition of her relationship with Charvonne Kemp.

“It’s illegal in the state Wisconsin to go another state and get married if you live here,” Carlson said. “I know that it’s not really all that enforced; it’s still something that hangs over your head.

The marriage evasion law is particularly problematic for same-sex couples in Wisconsin because the Obama administration in most cases has elected to recognize same-sex marriages even if the state doesn’t recognize them — provided these couples are able to marry in a jurisdiction that allows it.

John Knight, a staff attorney with the ACLU, called the marriage evasion law a ‘Catch-22’ for Wisconsin couples in an interview with the Blade, telling the paper that this provision of Wisconsin’s marriage statutes makes the state unique from others where same-sex couples are prohibited from marrying.

The new lawsuit, called Wolf and Schumacher v. Walker, was filed by the national ACLU, the ACLU of Wisconsin and Mayer Brown LLP on behalf of four same-sex couples: Virginia Wolf and Carol Schumacher of Eau Claire, Marie Carlson and Charvonne Kemp of Milwaukee, Roy Badger and Garth Wangemann of Milwaukee and Judith Trampf and Katharina Heyning of Madison.

Unlike other state attorneys general, Wisconsin’s J.B. Van Hollen told the Blade in a statement that he would defend the state’s equal marriage ban in court.  “This constitutional amendment was approved by a large majority of Wisconsin residents,” Van Hollen said. “I believe the amendment is constitutional, and I will vigorously defend it.”

In their complaint, the couples point to Wisconsin’s progressive past when it comes to marriage:

Wisconsin, however, once had a laudable history of supporting the freedom to marry on equal terms. For example, Wisconsin never banned marriage between people of different races. In 1850, Wisconsin became one of the first states to enact legislation protecting the property rights of married women, and by the turn of the twentieth century, Wisconsin had lifted many other legal restrictions on a married woman’s ability to exercise financial independence from her husband.

Wisconsin currently allows same-sex couples to enter into domestic partnerships which provide limited legal rights.  The 2006 constitutional amendment which banned marriage equality in the state also banned any “legal status identical or substantially similar to that of marriage for unmarried individuals.”

The full filing in the Wisconsin case can be found here, courtesy of the Washington Blade.  More information on the case from The Civil Rights Litigation Clearinghouse can be found here.


  • 1. Jake  |  February 4, 2014 at 11:53 am

    Wisconsin was also the FIRST state to add sexual orientation to its protected classes in employment, housing and public accommodations, which law was signed in 1982 by one of the last reasonable Repub Govs in the country, Lee Sherman Dreyfus (or "Governor Red Vest" as he was sometimes semi-affectionately known). He did not run for a 2nd term but in 2006 spoke out against the constitutional gay marriage ban in WI now being challenged. As I have mentioned before here and there, Wisconsin is just having a brief McCarthy moment again and this too shall pass. Glad to see this beginning in my birth state.


  • 2. Dann  |  February 4, 2014 at 11:57 am

    I too was born and raised in Wisconsin and I'm very happy to see this lawsuite filed.

  • 3. Bruno71  |  February 4, 2014 at 12:05 pm

    I never knew that law was signed by a GOP governor. Wisconsin was way ahead of the curve on LGBT rights once, it is indeed sad it's fallen into the hands of McCarthyists. Unfortunately, I don't see when it ends, though. The discriminatory amendment was passed by 2 GOP legislatures and enacted in 2004, and the people of Wisconsin (except for a blip in 2006/2008) are sticking by their precious Republicans through thick and thin.

  • 4. Rick O.  |  February 4, 2014 at 12:12 pm

    Wisconsin was at the forefront of the Republican Progressive movement pre WWI. The parties have changed utterly, so forget about it.
    Love that the plaintiff here is short of an "o" (Wolf, not Woolf), but is nonetheless Virginia Wolf. Is NOM afraid?

  • 5. Zack12  |  February 4, 2014 at 12:15 pm

    The gerrymandering and voter id laws don't help either.
    To me, even worse then Wisconsin election Scott Walker in 2010 was Ron Johnson replacing Russ Feingold.
    We went from having a champion of progressive causes to a Koch Brother rubber stamper.

  • 6. Bruno71  |  February 4, 2014 at 12:33 pm

    But then they throw in the Tammy Baldwin curveball. Wisconsin has become rather inscrutable politically.

  • 7. Zack12  |  February 4, 2014 at 12:35 pm

    Sadly,the 2010 Republican plan to get control of legislastures and governor's mansions worked.
    Sad to say but in many areas, even if the residents don't want Republican control anymore gerrymandering and redrawn districts have made that impossible until 2021.
    As for moderate Republicans, most of them have been purged. Jim Gerlach was among the few left but he's retiring from COngress this year.

  • 8. jpmassar  |  February 4, 2014 at 12:19 pm

    The Parliament of Scotland just passed a same-sex marriage bill by a very large 105-18 margin. The country of 5.3 million, established in the ninth century, becomes the seventeenth in the world to support equality. Scotland also becomes the third country in the United Kingdom to extend marriage to same-sex couples, after England and Wales did last year.

    “Thirty-four years after Scotland decriminalized homosexuality, this victory comes after heated debates between religious bodies and MSPs (members of the Scottish Parliament) since the first petition was drawn up in 2009,” HRC reports.

    The marriage equality bill was formally introduced in the Scottish Parliament in June 2013, which eventually passed stage one of voting with a 98-15 victory with 5 abstentions in November 2013, and today finally passed with a victory of 105-18 with no abstentions.

    The bill also includes provisions to allow transgender people to remain married while obtaining a Gender Recognition Certificate, extends recognition to same-sex couples married elsewhere, and maintains the option for civil partnerships while opening them up to mixed-sex couples also.

    Weddings could begin in the fall.

  • 9. grod  |  February 4, 2014 at 1:22 pm

    JP Its a bit of a reach to call Scotland a country. Would you describe each of the States in the US, each of the provinces of Canada or each states of Australia a country. All three countries also have territories.

  • 10. bythesea  |  February 4, 2014 at 3:27 pm

    No, it would be more apt to ask if France is a country even though it's a member of the EU.

  • 11. Christian  |  February 4, 2014 at 8:38 pm

    Scotland is a nation, not a nation-state. A better example would be like the Indian Reservations of the US.

    They are nations, if not internationally recognized countries.

  • 12. StraightDave  |  February 4, 2014 at 10:11 pm

    Puerto Rico may be a better analogy. US citizens, but some autonomy of government. They put up their own Olympic teams, which SCO does in most sports except for the Olympics. But even that is not exact. I'll bet the Scots feel more fully part of the UK, while Puerto Rico isn't quite on par with any of the states. Grey lines all over the place, it seems.

  • 13. ebohlman  |  February 4, 2014 at 10:27 pm

    They're also both places where anything edible can and will be available deep-fried.

  • 14. Deeelaaach  |  February 6, 2014 at 1:31 am

    And as I recall, there is a vote coming up for independence. Scotland has been independent at times in its history – voluntarily also if I remember correctly. I don't know as much about Scottish history as I should – I'm half Scot.

  • 15. Zack12  |  February 4, 2014 at 12:33 pm

    Glad to see a lawsuit against the ban finally filed. If nothing else, there is a good chance the very weak domestic partnership law in Wisconsin is going to overturned so there is no reason not to go full steam ahead.
    And if we need to see animus, all we have to do is look at the lawsuit filed over the partnership law.
    It's already been established that it doesn't resemble marriage in any way shape or form and only includes a handful of rights and that was still too much for the bigots.
    I would say this,our chances at the 7th circuit aren't good but it still sets the stage for the Supreme Court down the road.

  • 16. Stefan  |  February 4, 2014 at 2:51 pm

    I've heard no indication of there being a "good chance" of the domestic partnership law being overturned.

  • 17. Warren  |  February 4, 2014 at 3:21 pm

    “It’s illegal in the state Wisconsin to go another state and get married if you live here,”

    I doubt that it is constitutional to asses a fine against a couple who decides to marry in another state. I think VA made it a crime if interracial couples of VA married in another state or district. Hopefully, the SCOTUS already addressed this issue in the Loving vs VA case.

  • 18. sfbob  |  February 4, 2014 at 3:38 pm

    A violation of the law in Wisconsin (or Delaware, which has a similar law) occurs ONLY if a couple goes to a state to contract a marriage that would not be legal in their home state. I really doubt any state would want to attempt to limit ALL couples to marrying in the state where they live; the authorities in Nevada would be quite displeased.

    Wisconsin and Delaware are the only states with such a law. But the penalties in Delaware are minuscule ($100 fine or 30 days in jail) as compared to those imposed in Wisconsin ($10,000 fine or 9 months in jail). As I recall, in the case that became known as Lawrence vs Texas, the attorneys for the plaintiffs made sure that the plaintiffs were assessed a fine sufficiently large that a challenge to the law could be heard by the courts.

    There are actually more states that prevent people from coming to them to marry if they can't get married in their home state. Massachusetts used to be one such state; it became controversial when MA became the first marriage-equality state. At the time, people from other states were either being turned away when they attempted to get married there or the local authorities chose to ignore the law. I believe the MA state legislature subsequently overturned it there but other states may still have one like it.

  • 19. Bruno71  |  February 4, 2014 at 5:34 pm

    If I recall correctly, Mass. repealed that law around the time prop 8 was passed, perhaps a bit afterwards. I'm not aware of any other marriage equality states with that law on the books (could be my ignorance), but I do know that at one point Spain had a law like that.

  • 20. Zack12  |  February 4, 2014 at 5:40 pm

    I remember Mitt Romney using that law against gay and lesbian couples who wanted to marry in Masschusetts.

  • 21. sfbob  |  February 4, 2014 at 10:25 pm

    The law in Massachusetts was repealed in 2008. Per Lambda Legal, five states still have "reverse marriage evasion laws:" Illinois, Vermont, New Hampshire, Wisconsin & Wyoming

  • 22. Rick O.  |  February 5, 2014 at 5:52 am

    I think Lambda's section is outdated, at least regarding VT. There was no mention of this on their state website or at the clerk's office when we showed up from Colorado to marry last Dec. In fact, the state is a virtual Vegas of no restrictions, and they seemed quite pleased in Little Brattleboro that we were the 2nd same sex couple from CO that day alone.

  • 23. Dr. Z  |  February 5, 2014 at 5:56 am

    Laws forbidding out of state couples from marrying in a state if the marriage would not be permitted in their state of residence are leftover bits of Jim Crow.

  • 24. Bob  |  February 24, 2014 at 7:56 pm

    The flood gates just broke in Illinois on Friday the 21st of February and today, Monday the 24th, couples are flocking to get married (limited to Cook County I believe per the court decision).

    The question remains, will Illinois issue a marriage license to a couple from Wisconsin? I cannot find any evidence pro or con that this is actually occurring. Just a lot of theories and conflicting opinions. Actual reports would be preferred.

    If not Illinois then we'll go elsewhere. We're not waiting any longer. Any information would be helpful.

    I really appreciate this site. It is one of the most informed sites on the web that I've found. Thank you

    Thanks to everyone ahead of time for your insightful and thoughtful comments.

  • 25. Colleen  |  February 24, 2014 at 10:24 pm

    I don't know about Illinois granting licenses to out-of-staters, but if you're in doubt, Iowa does. That's your next best bet with a waiting period of 3 days, which you can apply to have waived by a judge (call ahead, I guess?) More info on Iowa's Gay Wedding Planner:

    (Yeah I'm originally from Iowa.)

  • 26. Bob  |  February 28, 2014 at 1:09 pm

    On the phone this morning with the Clerk in Champaign Illinois and I was told (not his exact words) "We'll issue a marriage license to most anyone who walks in that door." He stated that they are following Cook County's lead so it looks a like a Chicago wedding for us!

    He nicely explained the implications are within the state of Wisconsin not recognizing the marriage, which we were well aware of, but what tipped the scales for their decision was the Federal recognition with DOMA being eliminated.

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