Wisconsin’s Criminal Gay Marriage Ban Challenged by ACLU

Wisconsin Governor Scott Walker was sued by four same-sex couples seeking the right to marry in the state and to overturn a law that threatens them with imprisonment if they wed in another state.

The complaint, filed yesterday in federal court in Madison by the American Civil Liberties Union, follows those by advocates seeking to expand recognition for gay couples beyond the 17 states where such marriages are allowed. Similar litigation is pending in states including Pennsylvania, Virginia, Florida, Michigan and Utah.

The statute makes it a criminal offense to go outside the state to “contract a marriage prohibited under the laws of Wisconsin.”

Wisconsin’s criminal provision is similar to marriage evasion laws in other states dating back 100 years, said Robin Wilson, director of the Family Law and Policy Program at the University of Illinois College of Law.

This type of legislation “dates back to states trying to enforce incest restrictions,” Wilson said. “States had to have all these different devices to enforce their marriage laws considering we don’t have borders.”

Advocates of gay marriage moved the fight for recognition to the state level following the U.S. Supreme Court’s decision in June that left standing an order ending California’s ban on same-sex marriage. The ruling also struck down the Defense of Marriage Act, a law that denied federal benefits to gay couples.

State Laws

The court didn’t say whether similar state laws should also be struck down, leaving lower courts to grapple with that issue.

Last month, Virginia Attorney General Mark Herring said he would seek to overturn his state’s ban, comparing it to a prohibition on interracial unions, which the U.S. Supreme Court struck down in 1967. He is the fourth state attorney general to refuse to defend such a law.

U.S. District Judge Arenda L. Wright Allen in Norfolk, Virginia, today is set to consider a request by same-sex couples to overturn the state ban without holding a trial.

Inconsistencies in the current patchwork of state laws make it likely that the U.S. Supreme Court will ultimately address the issue, said Roberta Kaplan, the New York attorney who represented Edith Windsor in her successful DOMA challenge.

‘Full Citizenship’

“We’ve never had a situation in our country like this, not for at least half a century, where a citizen has all the rights of full citizenship in one state and then they walk half a mile across the state border and half those rights are gone,” Kaplan said in a phone interview.

Tom Evenson, a spokesman for Walker, a Republican, didn’t immediately respond to an e-mail seeking comment on the complaint.

In an e-mail, Wisconsin Attorney General J.B. Van Hollen, also a Republican, said he plans to vigorously defend the state’s marriage law.

“This constitutional amendment was approved by a large majority of Wisconsin residents,” Van Hollen said. “I believe the amendment is constitutional.”

Wisconsin’s ban violates the U.S. Constitution’s guarantees of due process and equal protection, according to the complaint. The law sends a message that lesbians, gay men, and their children are “second-class citizens,” the ACLU said.

$10,000 Fine

“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,” the ACLU said. “But Wisconsin law says that may be a crime punishable by nine months in jail and a $10,000 fine.”

Delaware has a similar provision punishable by a $100 fine or as long as 30 days in prison.

It’s unclear whether Wisconsin’s provision has been enforced since voters in 2006 approved a constitutional amendment defining marriage as a union between a man and woman, Wilson said.

Eau Claire, Wisconsin, residents Carol Schumacher and Virginia Wolf, risk criminal prosecution for getting married in Minnesota in December, the ACLU said in its complaint. Wolf, 75, a professor emeritus of English and a former Unitarian minister, and Schumacher, 60, a retired elections administrator and former marriage counselor, have been in a relationship for more than 38 years, according to the complaint.

“The state of Wisconsin still treats Carol and Virginia as legal strangers and treats Carol as a legal stranger to the couple’s children,” according to the complaint.

With marriage comes protections such as the ability to make decisions about a partner’s health care, plaintiff Garth Wangemann of Milwaukee said.

Lung Cancer

In 2011, Wangemann was diagnosed with lung cancer and had much of his right lung removed, according to the complaint. A complication occurred after an operation, and he was put into a medically induced coma for almost a month.

With his progress uncertain, Wangemann’s father attempted to override the wishes of his son’s partner of 37 years, Roy Badger, who had power of attorney. The father sought to take his son off life support, the ACLU said.

Wangemann, 58, recovered before a decision was made.

“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 in a statement.

The other plaintiffs are Charvonne Kemp, a 43-year-old mutual fund accountant, and Marie Carlson, 48, a raw materials handler; and Judith Trampf, 53, and Katharina Heyning, 51. Heyning is the dean of the College of Education and Professional Studies at the University of Wisconsin’s Whitewater campus. Trampf is a human resources director at the school.

The case is Wolf v. Walker, 14-cv-64, U.S. District Court Western District of Wisconsin (Madison).

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