Another Week, Another Marriage Ban Struck Down. This Time, It’s Wisconsin.

lesbian-wedding-cake-topperThis is beginning to get monotonous, but in a good way: a federal judge has struck down a state marriage ban as unconstitutional. This time, the state is Wisconsin, where U.S. District Judge Barbara Crabb has ruled that the state’s constitutional amendment passed by voters in 2006 was nothing more than discrimination against lesbian and gay couples. “Preserving the traditional institution of marriage’ is just a kinder way of describing the State’s moral disapproval of same-sex couples.” Crabb wrote.

The judge also stuck a thumb in the eye of self-appointed defenders of traditional marriage by giving them a history lesson they are unlikely to appreciate. Throughout history, the most ‘traditional’ form of marriage has not been between one man and one woman, but between one man and multiple women, which presumably is not a tradition that defendants and amici [organizations that support the ban] would like to continue,” she wrote.

While Crabb made clear her disdain for the arguments to uphold the ban, she didn’t make clear what her ruling means. She didn’t issue an immediate stay to prevent the ruling from taking effect. But she also didn’t issue an order blocking enforcement of the marriage ban, leaving lawyers scrambling to determine whether marriages can happen at once or not.

State Attorney General J.B. Van Hollen promised to appeal the ruling. Of course, he argued, it’s only for the benefit of the couples who want to get married.

“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,” Van Hollen claimed disingenuously. If he didn’t appeal the ruling, though, the marriages wouldn’t be called into question. 

The Wisconsin ruling is another nail in the coffin of marriage bans. In another sign of the inevitability of a nationwide sweep, a lawsuit has been filed in North Dakota, the last state to have its ban challenged in court. 

And, in an important signal to the Supreme Court, a majority of Americans now believe that marriage equality is a constitutional right. Fifty percent of those asked in a Washington Post/ABC News poll said that marriage equality is covered under the Constitution’s equal protection clause, the one that judges keep citing in striking down marriage bans. With momentum like that, opponents haven’t a prayer of winning the battle.

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  • tdx3fan

    Never say that they have not a prayer. That is being completely over presumptuous. If the SCOTUS decides that all of these states that have their appeals going through have incorrect decisions, we are going to lose a lot of ground very quickly. This could still possibly happen.

  • Dakotahgeo

    Cool beans! It’s about time NoDak joined the 20th Cent… errr, 21ST Century! It had to happen sooner or later. Hoo-ray!

  • James Hart

    I don’t think it is always beneficial for judges to make these unilateral decisions because anti-gay politicians can then run on a platform which attacks “judges who legislate from the bench rather than heeding the will of the people.” That’s why abortion is still, after 40 years, a hot button issue: Judges, and not the people, made the decision to legalize abortion. I like the outcome. I just don’t agree with the process.

  • 1EqualityUSA

    James Hart, Abortion and equality are two totally different animals. I understand your comparison due to ongoing controversy, however, the Tedious Right is constantly stating these two, as though they have the same weight and it simply isn’t relevant.

    tdx3fan, I do hear you and this is a worry for me, however, the horses seem clearly out of the barn and lawyers are riding them in a steady canter. Also, Republicans are going to left behind in a miasma of archaic irrelevance, for their exclusionary, backwards, greedy, cheating, woman disrespecting, platforms. The SCOTUS justices that they appoint are clearly “activists.” Citizens United and the Voting Rights Act being gutted are disgraceful examples of “activists” stacking the deck in favor of their political spores.

  • Texasbear

    The whole issue of living in a nation that is “Divided” is just preposterous anyway. The whole problem with allowing states to decide same sex marriage legality was the biggest mistake ever. It is crazy that you can get married in the Nations Capitol, live in a state that does not recognize your marriage, but can file jointly as married for Federal taxes. We are fortunate as we do not pay state taxes in Texas. I have no idea how state taxes are even handled in states that allow same sex married couples to file Federal Texas jointly, but do not as a state allow same sex marriage. I am assuming they file state taxes as single.

    I think that if Washington D.C. allows and recognizes same sex marriage, then it should be a federal law. Most of the people who work in D.C. live in Virginia, I can see that that might be one of the next states to tumble. It’s expensive to live in D.C. as my partner worked there and lived in VA. It’s also a very expensive state as well as I use to live in Norfolk and between taxes and tolls, you had to make well over $50,000 to live comfortably. The states are starting to fall like dominos anyway, so just get it over with, legalize it nationally and address more important and pressing issues. Tackle the fact that poverty is at an all time high, global warming is happening at a much quicker rate than estimated, and we are still in a war that makes Vietnam look like a gang fight. Everyone tries to blame Obama for everything, but how is he going to fix the mess ” The Great and Powerful Idiot, Bush” left behind. I really don’t blame Obama at this point as he has given up trying to make changes, but neither party will not work with him, so after six years I would be fed up as well.

    I honestly never thought I would see the day that marriage between two men or women would be legal at all, but I never thought it would be a complete mess like it has become either. We have a few friends her in Texas that have gone to New Mexico to get married. It’s pretty stupid that the state of Texas recognizes these marriages, but will not pass a law to allow these same people to get married here in their home state. We are considering doing the same thing before the next Presidential election as we both think that the possibility of some republican will win and overturn the marriage laws but “grandfather” the couple who have already married.

  • Mezaien

    Way to go Wisconsin! I m still working on a state that is really D.E.K.C.U.F UP like Arizona. Hope and dream for a better state without republicans, and Christian! “YES WE CAN”.

  • sejjo

    @James Hart: So what do you suggest? That minority rights be put up to the vote of a tyrannical majority?

    Rights should never be put up to a vote on a ballot, that’s why they are called rights. The kindergarten understanding of democracy dictates that the majority rules absolutely and the minority can go screw itself, however, a more sophisticated understanding of democracy portends that no country can claim to call itself a democracy if it can’t even protect its minority against the tyranny of the majority. In a true democracy, just because you are bigger doesn’t mean you are right.

    And for the record, judges legislate from the bench every single day on a wide spectrum of matters. Legislation and statutes are not the only types of law. Case law is also law and is just as authoritative. The judiciary is on an equal footing with the other 2 arms of government and even though its members are not directly elected by the populace, they are usually appointed by elected members of government or in some other way as per the Constitution (which was put into place by democratically elected people).

    It always frustrates me when people on the right complain about so-called ‘activist judges’. It’s what judges do! Not just on gay rights (or any human rights), but also in criminal law, torts, anti-trust, commercial law and every other imaginable law. Judges make law everyday on a wide range of matters. It’s their constitutional duty.

  • tdx3fan

    Judges do not make law. They interpret law and create legal precedents. No judge goes away from established laws to make a ruling. When people whine about “activists judges legislating from the bench” they are really saying they disagreed with how that judge interpreted the law in those cases.

    “Case law” is not law at all… it is a collection of judicial precedents that are just as arguable as any other law. That is why we have an appeal process.

  • moonman157

    @tdx3fan: You’re right. Republicans weren’t complaining about activist judges when they wanted SCOTUS to strike down the Affordable Care Act, the most monumental piece of federal legislation since the Great Society. “Activist Judges” is a term you use when judges rule a way you don’t want them to. Even Scalia, who supposedly opposes judicial activism, engages in it all the time.

    Striking down marriage bans in the court is likely the only way that some of them will ever be removed. A lot of them are written into state constitutions (from years ago before marriage equality was so popular), and despite increased support for marriage equality it would be extremely difficult to override them by voters or the legislature. These rulings are necessary to allow people in these states to have the right to vote.

    On top of all of this, there’s a reason why every single judge has ruled against these bans. They’re unconstitutional, simple as that. They violate both equal protection and substantive due process.

    And I understand the arguments about abortion still being a contentious issue 50 years after Roe, but in this case the opposition will go away. Marriage equality has been the law in MA for what now, 10 years at least? Could opponents of marriage equality point to a single negative consequence of marriage equality in 10 years, even just one heterosexual couple whose marriage has been ruined because gay people can get married? Obviously not. If any of their doomsday arguments were true, we would have seen them played out in states where marriage equality has been the law for years now, but none of their predictions have materialized. Even if judges have to be the ones to implement marriage equality, nothing bad will happen as a result, and opponents of equality will die down and go away. This is a victory for all of us.

  • 1EqualityUSA

    Scalia, Alito, Roberts, and Thomas (who followed along, mule-like) dissented.

  • Ramjet

    On, Wisconsin! On, Wisconsin!
    Grand old Badger State!
    We, thy loyal sons and daughters,
    Hail thee, good and great.
    On, Wisconsin! On, Wisconsin!
    Champion of the right,
    “Forward”, our motto,
    God will give thee might!

  • morgan riggs

    What I can see happening are laws that “protect” others from equal marriage. The so-called conscience laws that are sweeping the nation currently being used to deny women abortions or to medically treat a woman in the throes of a miscarriage unless it will cause her immediate death. I can see these conscience laws being put in place for city clerks, justice of the peace, etc. Don’t say it isnt possible to toss up so many road blocks and legal log jams that in some states getting married, while legal, will be nearly impossible.

  • skeetaro

    @morgan riggs: I think you’re probably right morgan, those laws might go into effect for photographers and bakers and such, but they can and will be successfully brought down in court. As for city clerks and justice of the peace…they have no choice as government employees ~ They are sworn to follow the law of the land and if that law says they must marry or accommodate all marriage seekers, then that is what they must do, or risk losing their job or face criminal arrest.

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