ACLU of Wisconsin sues for marriage equality in the state

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Charvonne Kemp and Marie Carlson. - PHOTO: ACLU of Wisconsin

The American Civil Liberties Union delivered an early Valentine to gay and lesbian couples in Wisconsin. The ACLU, representing four same-sex couples, filed a federal lawsuit in Madison on Feb. 3 that demands marriage equality in the state.

The couples and ACLU of Wisconsin legal director Larry Dupuis announced the move at the Madison Concourse Hotel in a mid-day news conference.

"These families simply want the security and recognition that only marriage provides," said Dupuis. "They have built their lives and raised children here."

The couples are:

• Judi Trampf and Katy Heyning of Madison.

• Roy Badger and Garth Wangemann of Milwaukee.

• Charvonne Kemp and Marie Carlson of Milwaukee.

• Carol Schumacher and Virginia Wolf of Eau Claire.

Three of the couples want to get married in Wisconsin and a fourth couple wants the state to recognize their marriage from Minnesota.

Schumacher and Wolf have been together 38 years, since their very first date in 1975. They were the first couple to join the Eau Claire domestic partner registry in 2009, and they got married on their anniversary in December by a judge in Minnesota.

As Wolf put it, “We’ve been inching towards matrimony for 38 years.”

Schumacher said: “The main reason I want to marry Virginia is that it would be an affirmation of our relationship and our family.”

In Wisconsin, same-sex couples can enter into registered domestic partnerships, which provide limited protections. But same-sex couples cannot marry — voters approved a constitutional amendment barring marriage between two people of the same sex and the recognition of any legal status substantially similar to marriage for same-sex couples. State law also refers to marriage as the union of a “husband and wife.”

The equality lawsuit names Republican Wisconsin Gov. Scott Walker as a defendant, along with state Attorney General J.B. Van Hollen, Revenue Secretary Richard G. Chandler, State Registrar Oskar Anderson, Eau Claire County District Attorney Gary King, Milwaukee County Clerk Joseph Czarnezki and Dane County Clerk Scott McDonnell.

The ACLU of Wisconsin, the national ACLU and the law firm of Mayer Brown filed the suit, which is Wolf v. Walker, in U.S. District Court for the Western District of Wisconsin.

The attorneys want the court to declare the state’s amendment and laws barring gays and lesbians from marrying in violation of  the  Equal Protection and Due Process Clauses of the U.S. Constitution.

In the preliminary statement, the equality brief states, “Marriage is universally recognized and celebrated as the hallmark of a couple’s love for and commitment to each other. When two people marry, they commit personally and publicly to  build  a  life  together, and they  ask  their  families,  friends, communities, and government to respect, honor, and support that commitment. Marriage has long been recognized and valued for its beneficial contribution to the welfare of society and to individual happiness. Lesbians and gay men in Wisconsin are denied the freedom afforded to different-sex couples in this State to have their loving, committed relationships recognized through marriage.”

The filing came about a month after federal judges in Oklahoma and Utah overturned state constitutional amendments barring recognition of same-sex marriages and the day before a federal court hearing in a challenge to Virginia's anti-gay amendment.

The filing also came eight months after the U.S. Supreme Court, in U.S. v. Windsor, overturned the federal provision barring the U.S. government from recognizing same-sex marriages. In another ruling, the high court cleared the way for the overturning of an anti-gay marriage amendment in California.

Since the rulings, federal agencies have released rules for gay couples to access the more than 1,100 federal benefits and rights associated with marriage. Meanwhile, the number of lawsuits seeking marriage equality has ballooned to more than 40 and the number of states where gays can marry has grown to 17 plus the District of Columbia.

The Wisconsin brief notes the advances elsewhere in the country: “Yet Wisconsin, a historic leader in marriage equality, maintains one of the most restrictive bans on marriage for same-sex couples in the nation. Wisconsin’s constitutional amendment barring same-sex  couples from marrying not  only denies loving,  committed,  same-sex couples the dignity and status that only marriage can confer on their relationships and their families, it also prohibits the extension to same-sex couples of the same legal protections, duties, and benefits that married couples are allowed by law. The State deprives same-sex couples of these rights and freedoms for no other reason than their sexual orientation and their sex.”

John Knight, a staff attorney with the ACLU Lesbian, Gay, Bisexual and Transgender Project, said, "More and more Americans over the past few years accept the idea that same-sex couples and their families shouldn't be treated differently than other families. It is our hope that Wisconsin will soon join the other 17 states in granting the freedom to marry."

For gay and lesbian residents of Wisconsin to marry, they must leave the state. Yet Wisconsin law even makes that a crime, punishable by up to nine months in jail and a $10,000 fine.

"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," said Dupuis.

Fair Wisconsin, the statewide civil rights group involved in defending a right-wing challenge to the state domestic partnership law, pledged its support to the cause in a statement from Katie Belanger, the group's president and CEO. She said, "We certainly support the relief requested in the ACLU’s case, as well as all efforts to make marriage equality a reality.  We look forward to monitoring the Wisconsin case and the more than 40 cases across the country as they continue to move forward."

Van Hollen, in his official capacity as attorney general, pledged to defend the amendment in court. "This constitutional amendment was approved by a large majority of Wisconsin residents. I believe the amendment is constitutional, and I will vigorously defend it," a statement from the attorney general's office said.

Meanwhile, Democratic state Rep. Jon Richards, who is running for attorney general, issued a statement backing marriage equality: "Like so many loving families across the state, my wife Andrea and I are pleased that the federal court here, as it has in so many other states, will have a chance to rule that the U.S. Constitution ensures that every loving couple should be treated equally.

He continued, "As attorney general, it will be my obligation to the citizens of Wisconsin to defend their constitutional rights; rights that I believe are currently being violated for same-sex couples. I support marriage equality, and under my leadership, the Department of Justice will be an ally of those seeking equality for all individuals in Wisconsin."

In January, Virginia's new attorney general, a Democrat, reversed his Republican predecessor's position on equality and sided with plaintiffs in a major push to overturn that state's anti-gay marriage amendment.