June 6, 2014, will go down in Wisconsin history as the day when county clerks first issued marriage licenses to same-sex couples in the Badger State. It was on June 6 that federal Judge Barbara Crabb declared that Wisconsin's ban on same-sex marriages was unconstitutional in a case brought before her by the American Civil Liberties Union on behalf of eight Wisconsin lesbian and gay couples. The ban, the judge declared, violated the plaintiffs' fundamental right to marry and their right to equal protection of laws under the 14th Amendment to the United States Constitution.
Despite Crabb's stay of her subsequent June 13 order and the obstinate resistance of Gov. Scott Walker and Attorney General J.B. Van Hollen, on June 6 our state joined the ranks of states where marriage equality is either fully realized or working its way through the courts toward fulfillment. The marriage map, so to speak, has been redrawn. Public opinion continues to shift in favor of marriage equality. Conservatives are rethinking their opposition. It's time for all opponents to reconsider denying equality and liberty to other Americans.
There are sincere heterosexual people who believe that allowing lesbian and gay couples to share what heterosexual couples already have — the freedom to marry legally — is a bad idea.
Many of these people base their beliefs on their religion. The ACLU plaintiffs are not asking these people to give up their religious beliefs or practices. In fact, if the state required churches or other religious institutions to perform marriages contrary to their doctrine, the ACLU would object. This lawsuit has never been about telling religious institutions whom they may marry or whom they may not marry.
Some others believe allowing same-sex couples the freedom to marry will weaken opposite-sex marriages. To my knowledge, the divorce rate has not gone up in any state because of marriage equality.
Some opponents of the freedom to marry for lesbian and gay couples have reacted to the judge's decision by complaining that she has overturned the "will of the people." This view fails to appreciate the bargain that we citizens have made with our government — we have rights, such as those in the Bill of Rights. Fundamental rights, such as the right to marry, are not subject to a majority vote. The American people really aren't free if they are subject to the tyranny of the majority.
It appears that the state will appeal the judge's final order vigorously at the U.S. Court of Appeals in Chicago. That means the ACLU will continue this fight with greater vigor. The lawyers from both sides of the case will submit written arguments, and there will be oral arguments, perhaps in the early fall.
For the couples who married in the time period between Crabb declaring the ban unconstitutional and putting her own order on hold, the ACLU believes that these marriages are valid. These new marriages, we believe, may not be undone retroactively. And we hope that Walker will admit that these 550-plus marriages are valid.
We are hopeful that soon the people of America all will enjoy the freedom to marry, regardless of their sexual orientation, regardless of where they live. The members of the American Civil Liberties Union fervently believe that in order for anyone to be free, everyone needs to be free. It is difficult sometimes in a changing world to accept that the U.S. Constitution needs to protect all people living here equally. When it does, America will be an even greater nation.