Why not in our state?

Friday, April 18, 2014

As the executive director of the American Civil Liberties Union of Wisconsin (ACLU-WI), and a gay man, I spend a lot of time defending or promoting the civil liberties and rights of other people, regardless of their sexual orientation.  The freedom to marry is an exception.  Thirty-four years ago, when my partner Bob and I got together, very few people or groups talked about marriage equality for gay couples.  Whether or not we wanted to marry wasn’t even a topic for discussion.  Thirty-four years ago the conversation around LGBT rights was much more likely to be about police harassment, unpunished hate crime violence, and job discrimination. 

The ACLU was one of the first national organizations to support legal recognition of same-sex relationships, including marriage.  Our first marriage case came out of Minnesota in 1972.  Unfortunately, if not surprisingly, the courts were not ready to take our clients’ claims seriously. 

The climate today, according to public opinion polls, is much different.  Many people and groups have been working hard for a long time to advance LGBT rights and many social, political and cultural factors have contributed to the change in public attitudes.  The rapidity of the change has been breath-taking when one considers that less than ten years ago Wisconsin (2006) and 30 other states adopted state constitutional provisions prohibiting same-sex marriages or the recognition of such marriages legally entered into outside of these states.

Last June the U.S. Supreme Court decided U.S. v. Windsor, a federal lawsuit in which the ACLU helped Edie Windsor get back the inheritance taxes she would not have had to pay if her marriage to her wife Thea had been recognized by the federal government. The Supreme Court struck down a section of the discriminatory federal Defense of Marriage Act.  Supreme Court Justice Kennedy said that DOMA violated Ms. Windsor’s fundamental constitutional right to marry. 

We all celebrated the important victory in Windsor, but the celebration was muted in states like Wisconsin where state constitutions or other state laws prohibited marriages except between one man and one woman.   Here in Wisconsin, the ACLU’s response to our victory in Windsor was to try to get whatever value we could find that applied here, such as the right to Social Security benefits for registered domestic partners. 

However, it soon became clear that legal developments and community interest after Windsor were moving more rapidly than most observers had anticipated.  Wisconsin couples and their allies were asking, “why not here?”   After federal district judges in Oklahoma and Utah struck down prohibitions on the freedom to marry, it became increasingly apparent that there was no good reason not to sue the State of Wisconsin.  So after carefully, but expeditiously, developing a case, the ACLU filed the challenge in federal court in Madison on February 3, 2014.  We amended our complaint later in the month so that the plaintiffs now include eight diverse couples. 

Our strategy is to move rapidly so that Wisconsin couples will have a voice in the judicial and public debate over the freedom to marry before the U.S. Supreme Court takes up the issue in the next year or two.  Lawsuits alone do not usually change society, but they have played an integral role in many social movements, such as the civil rights movement.  That movement would be unimaginable with cases like Brown v. Board of Education of Topeka (1954), which prohibited racial segregation in public education, or Loving v. Virginia (1967), which struck down a state’s prohibition on interracial marriage. 

Our case, Wolf v. Walker, has been assigned to federal judge Barbara Crabb.  We have filed a motion for summary judgment, which says that there are no relevant disputed facts and the law is on our side.  Governor Scott Walker and other state officials are named as defendants and are represented by the Wisconsin Attorney General.  These defendants’ attorneys filed a motion trying to delay the case, which the judge has already rejected.

They have also filed a motion to dismiss our complaint, to which we have already responded.  Final briefs from lawyers on both sides of our summary judgment motion are due to the court by May 19th.  Judge Crabb will rule on the motions sometime after then.  If one side loses it will undoubtedly appeal her decision to the federal Seventh Circuit Court of Appeals in Chicago.  Or she may deny both motions, in which case both sides will prepare for a trial before Judge Crabb in Madison beginning August 25, 2014, and make a decision some time after the trial.  That decision would also be appealed to the Seventh Circuit. Whether our case goes to the U.S. Supreme Court first, or is among multiple cases that court takes up, or whether another case reaches the Court before we can get there isn’t as important as making sure that the public, other judges, and the Justices hear from Wisconsin. Wisconsinites deserve to have their voices and stories heard on this issue.

There are now over 60 cases challenging restrictions on the freedom to marry.  The ACLU is handling nearly a dozen.  The number of cases suggests that the plaintiffs’ attorneys consider their cases likely winners.  However, this does not mean that the freedom to marry is inevitable or will take a predictable path.  We all have much more work to do to continue expanding public support for marriage equality.

 

This article appeared in the April 17, 2014 issue of the Wisconsin Gazette

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