Wisconsin Attorney General J.B. Van Hollen asked a federal judge on May 23 to place on hold any ruling she makes striking down the state’s ban on gay marriage. It was the second time in a week that the right-wing Republican indicated that he doubts that he’ll succeed in defending the law.
Meanwhile, Gov. Scott Walker, who voted for the state’s ban and has been a longtime opponent of gay marriage, dodged questions the same day about whether he still supports the prohibition. He said he didn’t know whether the ban would withstand legal challenges, and that he can’t judge that because he’s not an attorney — or even a college graduate.
Walker added that he didn’t know how significant it would be for the state if same-sex marriage were to be legalized.
Van Hollen, during an interview that aired on WISN-TV, said that while he intended to aggressively defend Wisconsin’s constitutional ban on same-sex marriage, he expected to lose in federal court given recent rulings across the country in favor of gay marriage.
The American Civil Liberties Union filed a lawsuit in February on behalf of four gay couples challenging Wisconsin’s constitutional ban on gay marriage. The lawsuit contends that the ban denies gay couples the civil rights that other married couples enjoy.
U.S. District Judge Barbara Crabb has put the case on an expedited schedule and asked the ACLU not to seek a temporary halt to enforcement of the ban in the meantime, given that she hopes to rule on the merits of the case quickly.
State marriage bans have been falling around the country since the U.S. Supreme Court last year struck down part of the federal Defense of Marriage Act. Gay and lesbian couples can wed in 19 states and the District of Columbia, with Oregon and Pennsylvania becoming the latest to join the list this week when federal judges struck down their bans and officials decided not to appeal.
Wisconsin voters amended the state constitution in 2006 to outlaw marriage equality or any other legal support for gay and lesbian couples. The state has offered a domestic partner registry that affords gay couples a host of legal rights since 2009, but its future is in doubt. The conservative-leaning state Supreme Court is currently considering a case that contends the registry violates the anti-gay constitutional amendment.
Two of the court’s male justices have long been dogged by rumors that they’re gay, and closeted gay officials have historically opposed pro-gay positions to deflect doubt about their sexual orientation.
The ACLU lawsuit alleges that Wisconsin’s ban violates the plaintiffs’ constitutional rights to equal protection and due process, asserting the prohibition deprives gay couples of legal protections married couples enjoy simply because of their sex.
Van Hollen contends that if the judge strikes down all or a part of Wisconsin’s ban he would appeal the decision to the 7th U.S. Circuit Court of Appeals. While that appeal would be pending, Van Hollen argued, the judge should put her order on hold because clerks would be allowed to issue marriage licenses to same-sex couples.
Not preserving current law while an appeal is pending would lead to “chaos, confusion, uncertainty, and ultimately, further litigation,” Van Hollen said.
“The state is fighting tooth and nails to make sure that no same-sex couple in Wisconsin is allowed the freedom to marry, while signaling that they understand the weakness of their own legal position,” ACLU attorney John Knight said.
Walker, a potential 2016 Republican candidate for president, has largely avoided talking in depth about contentious social issues. But he has a long history of opposing gay marriage and Wisconsin’s 2009 domestic registry law.
His likely Democratic opponent, Mary Burke, supports legalizing gay marriage.
Walker said he didn’t think gay marriage would be an issue in the race.
A Marquette University law school poll released May 21 found that 55 percent of registered Wisconsin voters favor allowing gays and lesbians to marry legally, while 37 percent oppose it. Six percent said they didn’t know and 2 percent refused to answer.
The poll of 805 registered voters was conducted between May 15 and Sunday. The margin of error is plus or minus 3.5 percentage points.