Amid unprecedented legal momentum for same-sex marriage, Wisconsin couples remain in limbo

Lisa Neff and Louis Weisberg, Staff writers

As gay couples in Wisconsin waited in legal limbo in mid-June, equality foes continued working to defend anti-gay amendments in the courts and marched on Washington.

But those foes are caught in a losing streak. The march on Washington on June 19 fell flat, and there have been 21 consecutive court rulings for marriage equality since last summer, when the U.S. Supreme Court overturned a key provision in the anti-gay Defense of Marriage Act.

On June 25, a federal judge struck down Indiana’s same-sex marriage ban as unconstitutional. The court clerk in Marion County, home to Indianapolis, began issuing marriage licenses to same-sex couple about an hour after the decision was announced.

On the same day, the 10th Circuit Court of Appeals in Denver upheld a lower-court ruling that found Utah’s prohibition of same-sex marriage unconsitutional. The 3-2 ruling affects all states in the 10th Circuit: Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.

But the appeals court immediately put a stay on marriages in those states pending a U.S. Supreme Court ruling.  

Just weeks before the June 25 rulings,  U.S. District Judge Barbara Crabb on June 6 found that Wisconsin’s constitutional amendment barring gay couples from marrying violates the 14th Amendment’s Due Process and Equal Protection clauses. Crabb didn’t issue a stay — requested before her ruling by Republican Attorney General J.B. Van Hollen — until June 13. So for six days in early June, same-sex couples applied for and obtained marriage licenses in 60 of the state’s 72 counties. At least 550 gay couples were married in Wisconsin.

While the case is pending appeal with the 7th Circuit in Chicago, there’s uncertainty: For those with licenses who didn’t marry, should they wed? For those caught in the five-day waiting period, can they marry in another state? For those who married, what benefits, responsibilities or protections do they have?

“I think the harder questions are like adoptions, the really hard issues,” said Carl Tobias, a professor at the University of Richmond School of Law. That’s why these stays are so gut-wrenching for people.”

On June 16, Wisconsin’s congressional Democrats asked U.S. Attorney General Eric Holder to confirm, as he has done in similar situations in Utah and Michigan, that the federal government will recognize the marriages of Wisconsin gay couples and guarantee them:

• The ability to sponsor a foreign spouse for legal residency.

• Health, workers’ compensation, retirement and other benefits for the spouse of a federal employee.

• Health benefits, spousal ID cards, housing allowances and on-base support services for the spouse of a military servicemember.

• Joint income tax filings, as well as spousal exemptions of gifts, inheritances and the value of employer-provided spousal health coverage.

• Unpaid family and medical leave to care for an ill spouse.

• Spousal Social Security benefits.

“Earlier this year, you made clear that couples who married in Utah and Michigan after federal judges struck down those states’ bans are entitled to full federal recognition,” the lawmakers wrote. “We are grateful for this tremendous leadership on behalf of fairness and equality. We ask that you similarly declare that those same-sex couples who married in Wisconsin since the June 6 decision are equally entitled to the federal benefits they deserve.”

Meanwhile, the American Civil Liberties Union and the ACLU of Wisconsin, which filed the equality case on behalf of eight same-sex couples, was assessing the situation — preparing for the appeal and looking into whether additional lawsuits should be filed on behalf of couples left in limbo.

In addition to the June 25 rulings, another marriage equality case was set for June 26 in Louisiana and a hearing was set for July 2 in a Florida case.

And the 6th Circuit Court of Appeals will hear five cases from four states — Ohio, Michigan, Kentucky and Tennessee — in a single session in Cincinnati on Aug. 6.

The Cincinnati court is the third federal appeals court to weigh recent challenges to state bans. The 4th Circuit in Virginia heard arguments in another case in May. 

Any one of them, or all, could reach the U.S. Supreme Court and bring a conclusive ruling on marriage equality.

‘A hateful handful’

Leaders on the equality side fully expect the nine-member Court to eventually overturn the amendments and anti-gay marriage laws.

And so do many leaders in conservative circles — from Newt Gingrich, who was House speaker when DOMA was enacted, to seven-term U.S. Sen. Orrin Hatch of Utah. In May, Hatch told a radio interviewer, “Let’s face it: Anybody who does not believe that gay marriage is going to be the law of the land just hasn’t been observing what’s going on.”

Yet groups such as the National Organization for Marriage and the Family Research Council pledge to fight on for years against gay marriage the way the anti-choice movement has fought Roe v. Wade.

NOM promoted the June 19 march as a “road to victory.”

Co-sponsors of the event included FRC, the Roman Catholic Archdiocese of Philadelphia, the Washington Times newspaper, the Alliance Defending Freedom, Concerned Women for America and the Heritage Foundation.

Speakers included what the Human Rights Campaign described as a “parade of horribles” — former U.S. Sen. Rick Santorum, former Arkansas Gov. Mike Huckabee, Catholic Archbishop Salvatore Cordileone, NOM president Brian Brown, Capital Tea Party Patriots co-founder Doug Mainwaring, a gay man who says gay marriage is “objective evil,” and ADF counsel Austin Nimocks.

NOM also brought to the microphone Bishop Harry Jackson Jr., who has compared gay marriage to a satanic plot; Dr. Him Garlow, who has said gay marriage will lead to enslavement of those opposed to the unions; Heritage Foundation fellow Ryan Anderson, who has compared gays and lesbians to pedophiles; and the Rev. Bill Owens Sr., who has likened gay marriage to bestiality. 

Brown, in a statement to supporters before the march, claimed the Supreme Court “will be watching.”

He also said, “A competition is won by those who take the field, not by those who sit on the sidelines. Friends, we need to take the field for marriage — and fight to win.”

NOM’s critics, however, maintain the organization is now faking a movement — national polls show that strong opposition to marriage equality has dropped to 28 percent and only 40 percent of opponents of marriage equality would pay anything to stop its progress.

The march proponents “are the proud leaders of a hateful handful, the last gasp of a reactionary rump,” said HRC’s Fred Sainz.