In 2006, Wisconsin Referendum 1 passed, and became Article XIII, Section 13 of the state constitution.  It banned same-sex marriage, saying “Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.”

The Defense of Marriage Act (DOMA) is a federal law passed in 1996 that both created a federal definition of marriage as being between a man and a woman and expressly gave states permission to refuse to recognize marriages entered into by same-sex couples in other jurisdictions.  On June 26, 2013, the U.S. Supreme Court ruled in the ACLU case, Windsor vs. United States, that section three of the so-called "Defense of Marriage Act" (DOMA) is unconstitutional and that the federal government cannot discriminate against married lesbian and gay couples for the purposes of determining federal benefits and protections.

The American Civil Liberties Union, the ACLU of Wisconsin and the law firm of Mayer Brown filed a federal lawsuit on February 3, 2014 on behalf of four same-sex couples who wish to marry in Wisconsin or are seeking recognition for their legal out-of-state marriages.

Four additional same-sex couples were added to the case on February 28, 2014, when the ACLU filed a preliminary injunction seeking an order that the state may not enforce Wisconsin’s ban on marriage for same-sex couples.

Federal Judge Barbara Crabb gave the parties until May 19th to submit motions.  The State filed a “Motion to Dismiss.”  The ACLU, on behalf of our eight client couples filed a “Motion for Summary Judgement.” 

After considering the parties’ arguments and the law, on Friday, June 6, U.S. District Court Judge Barbara Crabb declared the state constitutional amendment, Article 13 Section 13, a violation of the equal protection of laws under the 14th Amendment to the US Constitution.  She called marriage “a defining right of passage and one of the most important events in lives of millions of people,” “essential to the pursuit of happiness” and a “fundamental mark of citizenship.”  She asked the ACLU to propose language for a permanent injunction to tell the defendants what they must do and must not do regarding the unconstitutional amendment.

On Monday, June 9, Attorneys for the ACLU filed their proposed injunctive language on the ban on same-sex marriage in Wisconsin.  The proposed language, would, among other things require county clerks to issue marriage licenses to same-sex couples and also provide for recognition of marriage of couples lawfully married in Wisconsin or other jurisdictions.  It would also provide to same-sex couples lawfully married in Wisconsin or other jurisdictions all the state law rights, protections, obligations and benefits of marriage that are provided to different-sex couples.

On Friday, June 13, Judge Crabb issued a permanent injunction to ensure that same-sex couples can marry and receive the spousal protections that have been denied them for so very long.  She also issued the decision to stay her opinion pending the State’s appeal to the 7th Circuit.  This means that, for the time being, Wisconsin counties will have to stop issuing marriage licenses to same-sex couples.

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