From the ACLU of Wisconsin:
The American Civil Liberties Union, the ACLU of Wisconsin and the law firm of Mayer Brown filed a federal lawsuit today on behalf of four same-sex couples who wish to marry in Wisconsin or are seeking recognition for their legal out-of-state marriages.
The plaintiffs include Roy Badger and Garth Wangemann of Milwaukee, who have been together 37 years. Three years ago Wangemann had much of his right lung removed after being diagnosed with lung cancer. Following the operation, a complication occurred and he was put into a medically induced coma for nearly a month. His progress was uncertain, and Wangemann’s father attempted to override Badger’s power of attorney to have his son taken off life support. Before that could happen, Wangemann recovered.
“What upset me the most was that after all of our time together, our relationship was not fully recognized by my family and there was a real danger that my wish to give Roy the ability to make decisions about my care could be stripped away,” Wangemann said. “Thankfully, our wishes held in this case. But without the protections that come with marriage, the consequences can literally be a matter of life or death.”
Other plaintiffs in the case are Carol Schumacher and Virginia Wolf of Eau Claire; Charvonne Kemp and Marie Carlson of Milwaukee; and Judi Trampf and Katy Heyning of Madison. Read their stories.
Wisconsin’s ban on marriage for same-sex couples prevents them from securing the hundreds of protections that state law provides to married couples. Wisconsin law subjects same-sex couples to an additional harm that is unique among states that deny same-sex couples the freedom to marry. The only way for Wisconsin couples to get the federal protections that come with marriage is for them to go out of state to marry. But Wisconsin law says that may be a crime punishable by nine months in jail and a $10,000 fine.
Among the plaintiff couples, Schumacher and Wolf were legally married in another state, raising the possibility of prosecution back at home. The lawsuit challenges the overall ban as well as the application of this criminal law to same-sex couples who are forced to choose between being denied federal protections and the risk of criminal prosecution.
“These families simply want the security and recognition that only marriage provides,” said Larry Dupuis, legal director of the ACLU of Wisconsin. “They have built their lives and raised children here. It is wrong for the state to treat these loving and committed couples as second-class citizens, and it is cruel to place them in a catch-22 where they can’t even travel elsewhere to obtain federal protections without their marriage being labeled a crime.”
The lawsuit was filed in the U.S. District Court for the Western District of Wisconsin. The plaintiffs allege that the state’s constitutional marriage ban sends a message that lesbians, gay men, and their children are viewed as second-class citizens who are undeserving of the legal sanction, respect, protections, and support that heterosexuals and their families are able to enjoy through marriage.
Criminalizing out of state marriages is a nasty little twist. I’m surprised there wasn’t a lawsuit sooner.
Meanwhile, the Virginia case was heard yesterday.
The ban on same-sex marriage is just like an old Virginia law that made interracial marriages illegal, and it’s time for Virginia to stop discriminating against gays and lesbians, a state attorney told a federal judge Tuesday.
But lawyers who support the ban said if the law is to change, it should be done by the legislature. They also argue that there has never been a fundamental right to same-sex marriage.
“We have marriage laws in society because we have children, not because we have adults,” said attorney David Nimocks of the religious group Alliance Defending Freedom.
The case is the first one in the South to reach oral arguments before a federal judge. Recently elected Democratic Attorney General Mark Herring announced Jan. 23 that he would not defend the state in the lawsuit because he believed it violates the equal protection clause of the 14th Amendment.
In overturning bans in Utah and Oklahoma, federal judges have also said those laws violate the 14th amendment.
Virginia Solicitor General Stuart Raphael told the judge Virginia had frequently been on the wrong side of history, citing the state’s ban on interracial marriages, its defense of segregation as well as its opposition to allowing female students into the Virginia Military Institute.
Raphael said supporters of the ban have failed to prove how allowing gay marriage would make opposite sex couples less likely to marry.
“That’s the Achilles heel in the argument,” he said.
U.S. District Judge Arenda L. Wright Allen said she would rule soon. If Wright Allen finds Virginia’s law unconstitutional, Raphael asked her to issue a stay so that nobody can get married until the case is heard on appeal.
He said the state wanted to avoid the situation Utah found itself in after marriages were briefly allowed to occur there before a stay was issued.
With Herring’s office deciding to side with the plaintiffs, the job of defending the law fell to the legal team of Norfolk’s Circuit Court clerk.
Attorney David Oakley said the court should respect the legislative process that created the law. If the law is to be changed, it should be done through the legislature, he said.
In addition, an attorney for the religious group Alliance Defending Freedom argued on behalf of the Prince William County’s clerk, which was allowed to intervene in the case. The clerk asked to intervene because of worries the attorney general’s office wouldn’t do an adequate job defending the law.
And there was some action in Utah as well.
The state of Utah offered a tailored defense of its ban on same-sex marriage in a brief filed late Monday evening with the 10th Circuit Court of Appeals, arguing its laws are all about the long-term interests of children.
Utah has chosen a definition of marriage that is “principally a child-centered institution, one focused first and foremost on the welfare of children rather than the emotional interests of adults,” the state said. “And by reinforcing that understanding, the state gently encourages parents to routinely sacrifice their own interests to the legitimate needs and interests of their children.”
That definition is not designed to demean other family structures “any more than giving an ‘A’ to some students demeans others,” the state said.
But redefining marriage in “genderless” terms likely would result in lower reproductive rates and fewer children being raised in the ideal environment provided by biological, opposite-sex parents, the state said.
Attorneys for the three same-sex couples who are challenging Utah’s ban have until Feb. 25 to file a response, and the state’s final filing must be submitted by March 4.
Oral arguments are scheduled for April 10 in Denver. The three-judge panel that will hear the case — as well as an appeal from the state of Oklahoma involving a similar ban — will be picked 10 days before the hearing.
You can see the full brief here. I’m pretty sure these are the same basic arguments that were made in the Prop 8 case in California. There may be some differences, but I’m not a lawyer so this is just my impression. I am sure we’ll hear more of the same when Texas’ case gets heard.