A letter from the American Civil Liberties Union of Wisconsin to Racine County Sheriff Christopher Schmaling seeks more information in the death of a mentally ill man shot and killed by Racine police on July 6.
A letter from Racine County District Attorney W. Richard Chiapete has commended the city of Racine Police Department and thanked the sheriff’s office for the handling of the investigation into the death of 37-year-old Rajko Utvic.
The determination was that Utvic “bears total culpability for this deadly force confrontation.” Chiapete wrote in his finding, “Mr. Utvic left officers with no other alternatives.”
ACLU of Wisconsin executive director Chris Ahmuty said the organization wants to know more. “The ACLU of Wisconsin believes the public deserves to know more before putting all the blame on an individual suffering from mental illness,” Ahmuty said in a news release. “District Attorney Chiapete’s letter to Racine Police Chief Howell does not sufficiently address this incident.”
Ahmuty wants to know whether any of the officers on the scene had undergone crisis intervention training? And asked, why didn’t the officers just step back to deescalate the situation?
In his letter to the sheriff, Ahmuty asked for a copy of the office’s report, which under state law must be released to the district attorney.
The Wisconsin Legislature in April adopted a law requiring that an independent investigator lead an investigation into officer-involved deaths.
The new law follows a number of officer-involved deaths in Wisconsin, including deaths in Kenosha, Madison and Milwaukee, according to the ACLU.
As the executive director of the American Civil Liberties Union of Wisconsin and a gay man, I spend a lot of time defending or promoting the civil liberties and rights of other people, regardless of their sexual orientation. The freedom to marry is an exception. Thirty-four years ago, when my partner Bob and I got together, very few people talked about marriage equality for gay couples. The conversation around LGBT rights was much more likely to be about police harassment, unpunished hate crime violence and job discrimination.
The ACLU was one of the first national organizations to support legal recognition of same-sex relationships, including marriage. Our first marriage case came out of Minnesota in 1972. Unfortunately, if not surprisingly, the courts were not ready to take our clients’ claims seriously.
The climate today, according to public opinion polls, is very different. Many people and groups have been working hard for a long time to advance LGBT rights, and many social, political and cultural factors have contributed to the change in public attitudes. The rapidity of the change has been breathtaking when one considers that less than 10 years ago Wisconsin and 30 other states adopted constitutional provisions prohibiting same-sex marriages or the recognition of such marriages legally entered into in other states.
Last June the U.S. Supreme Court decided U.S. v. Windsor, a federal lawsuit in which the ACLU helped Edie Windsor get back the inheritance taxes she would not have had to pay the federal government had it recognized her marriage to her wife Thea. The Supreme Court struck down a section of the discriminatory federal Defense of Marriage Act, and Justice Kennedy said that DOMA violated Ms. Windsor’s fundamental constitutional right to marry.
We all celebrated the important victory in Windsor, but the celebration was muted in states like Wisconsin, where state constitutions or other laws prohibited marriages except between one man and one woman. In Wisconsin, the ACLU’s response to Windsor was to try getting whatever value we could find that applied here, such as the right to Social Security benefits for registered domestic partners.
However, it soon became clear that legal developments and community interest after Windsor were moving more rapidly than anticipated. Wisconsin couples and their allies were asking, “Why not here?” After federal district judges in Oklahoma and Utah struck down prohibitions on the freedom to marry, it became increasingly apparent there was no good reason not to sue the State of Wisconsin.
So after carefully, but expeditiously, developing a case, the ACLU filed the challenge in federal court in Madison on Feb. 3. We amended our complaint later in the month so that the plaintiffs now include eight diverse couples.
Our strategy is to move rapidly so that Wisconsin couples will have a voice in the judicial and public debate over the freedom to marry before the U.S. Supreme Court takes up the issue in the next year or two. Lawsuits alone do not usually change society, but they have played an integral role in many social movements, such as the civil rights movement. That movement would be unimaginable without cases like Brown v. Board of Education of Topeka (1954), which prohibited racial segregation in public education, or Loving v. Virginia (1967), which struck down prohibitions on interracial marriage.
Our case, Wolf v. Walker, has been assigned to federal Judge Barbara Crabb. We have filed a motion for summary judgment, which means there are no relevant disputed facts and the law is on our side. Gov. Scott Walker and other state officials are named as defendants and are represented by the Wisconsin attorney general.
These defendants’ attorneys filed a motion trying to delay the case, which the judge has already rejected. They also have filed a motion to dismiss our complaint, to which we have already responded. Final briefs from lawyers on both sides of our summary judgment motion are due to the court by May 19. Crabb will rule on the motions sometime after then.
If one side loses, it will undoubtedly appeal Crabb’s decision to the federal Seventh Circuit Court of Appeals in Chicago. Or she may deny both motions, in which case both sides will prepare for a trial before Judge Crabb in Madison beginning on Aug. 25, and make a decision some time after the trial. That decision would also be appealed to the Seventh Circuit.
Whether our case goes to the U.S. Supreme Court first, or is among multiple cases that the court takes up, or whether another case reaches the Court before we can get there isn’t as important as making sure that the public, other judges, and the Supreme Courts Justices hear from Wisconsin. Wisconsinites deserve to have their voices and stories heard on this issue.
There are now more than 60 cases challenging restrictions on the freedom to marry. The ACLU is handling nearly a dozen. The number of cases suggests that the plaintiffs’ attorneys consider their cases likely winners. However, this does not mean that the freedom to marry is inevitable or will take a predictable path. We all have much more work to do to continue expanding public support for marriage equality.
Under an arcane and seldom enforced “marriage evasion” law, Wisconsin same-sex couples who tie the knot in a marriage-equality state, such as neighboring Iowa or Minnesota, could face nine months in jail and a $10,000 fine when they return home as newlyweds.
Statute 765.30(1)(a) of the Wisconsin code provides the penalty to “any person residing and intending to continue to reside in this state who goes outside the state and there contracts a marriage prohibited or declared void under the laws of this state.”
The law, which is similar to evasion laws in other states, was enacted in 1915 to prevent Wisconsinites from going to other states and entering into marriages prohibited here, such as marriages involving cousins or people under the state’s legal age of consent. The most recent prosecution of the law that WiG was able to find was a 2001 case involving a man who left the state to get married 30 days after his divorce became final. Wisconsin law requires divorced people to wait six months before entering into another marriage.
WiG was unable to find evidence that the law has ever been used to prosecute a same-sex Wisconsin couple, despite the fact that many have married outside the state, including U.S. Rep. Mark Pocan and his husband Phil Frank. But in the wake of the Supreme Court decision revoking Section 3 of the Defense of Marriage Act, which withheld federal recognition for same-sex marriages, the White House is on an expedited course to extend as many federal marriage benefits as possible to lesbian and gay couples who are eligible.
The rapidly changing federal policies on same-sex marriage have made evasion laws like the one in Wisconsin potential legal quagmires.
ACLU of Wisconsin executive director Chris Ahmuty said it’s not difficult to imagine a rogue district attorney apprehending a same-sex couple married out of state in order to make a statement or score political points, just as renegade county clerks in New Mexico and Pennsylvania are handing out marriage licenses to test the law in those states.
In a July 9, 2008, interview that aired on CNN.com, Julaine Appling, CEO of Wisconsin Family Council, advocated for the prosecution of same-sex couples under the marriage evasion law.
“You purposely left the state or another state and you get married and you know it’s not going to be legal where you reside and you have every intention of returning. That’s defrauding the government,” Appling said in the interview.
Appling, a never-married woman who has lived for decades with another never-married woman in a home they own jointly in Watertown, continues to work fiercely against equality.
She’s currently behind a lawsuit to overturn the state’s domestic partner registry law, which offers some key rights to same-sex couples in Wisconsin, such as inheritance and hospital visitation.
At the time Appling advocated for the prosecution of same-sex couples who marry out of state, labor and employment law attorney Tamara Beth Packard told the Wisconsin Law Journal that while prosecution under the law seemed unlikely, it also seemed possible.
“I don’t think we should underestimate the level of animosity that some people have toward gay and lesbian couples who try and receive some legal recognition of their relationship,” she said then.
Since then, the issue of same-sex marriage has become far more prominent, with a dwindling number of opponents more entrenched than ever.
The ACLU’s Ahmuty said that in order to be in violation of the law, a married same-sex couple would have to attempt to exercise a legal right in Wisconsin that’s reserved only for married couples, such as file a joint state tax return or treat property as if it was community property.
Ahmuty said couples would be foolhardy to test the state’s marriage evasion law. “The penalties are so strict,” he warned. “People who go ahead and do this are putting themselves at a considerable risk.”
But at the same time, Ahmuty is actively encouraging same-sex couples registered with Wisconsin’s domestic partner registry to apply for Social Security benefits as a couple. That, he explained, is because the registry allows partners to inherit property without a will, which is the legal standard used by the Social Security Administration in approving claims for couples.
Single people are entitled to Social Security benefits based solely on their own earnings, but married couples have more generous options. Not only can they inherit their spouse’s benefits, but if one spouse earned lower wages than the other, or did not earn enough Social Security credits to be insured for retirement benefits, he or she may be eligible to receive the benefits of a spouse.
To demonstrate just how complicated the legal situation is, Ahmuty said Wisconsin couples should apply for Social Security benefits under the state’s partner registry law and not on the basis of an out-of-state marriage, which would be an active violation of the state’s marriage evasion law.
This use of the registry is unproven, however, and the registry faces a lawsuit seeking to overturn it for allegedly violating a voter-backed constitutional amendment banning any legal arrangement between same-sex partners that is “substantially similar” to heterosexual marriage. The Wisconsin Supreme Court, whose justices are primarily conservative Republicans, will determine the case.
The recent announcement that the federal government will allow same-sex couples
married in any equality state, regardless of where they reside, to file joint federal
tax returns poses yet another conundrum under Wisconsin’s marriage evasion law. Ahmuty said that same-sex couples who want to take advantage of this benefit must be careful to file separate state tax returns as single individuals, even if they file joint federal returns.
Filing joint state tax returns as a married couple would not only be rejected by the Wisconsin Department of Revenue but could trigger prosecution under the marriage evasion law, Ahmuty warned.
Fair Wisconsin is “trying to make sure people understand what is coming out as it unfolds,” said Fair Wisconsin president and CEO Katie Belanger. “Given our state ban on marriage equality and marriage evasion statutes, the IRS’ decision to allow same-sex couples who are legally married in another jurisdiction to file joint taxes puts Wisconsin in a difficult position. We would strongly encourage the Wisconsin Department of Revenue to generate clear guidelines for married same-sex couples in Wisconsin well before the tax filing season begins.”
Belanger urged same-sex couples to seek professional advice from their lawyers and accountants.
She noted that in addition to presenting a hardship for same-sex couples, the patchwork of often-contradictory laws governing marriage in different states presents a nightmare for businesses with multi-state operations. They must apply a confusing variety of withholding laws and personnel policies to gay and lesbian employees in different states. This scenario presents yet another drag on the state’s economy, which currently ranks 38th in the nation in terms of job creation.
Ahmuty said the confusion will eventually be resolved by a boatload of legal cases wending their way through the judicial system and the eventual overturning of DOMA’s Section 2, which declares that states and territories of the United States have the right to deny recognition of same-sex marriages that originated in other states or territories. The June 26 Supreme Court decision did not address Section 2, but Ahmuty and others believe it’s only a matter of time.
“Section 2 is going to get overturned someday and there’s a lot happening in the pipeline, so people just need to be patient,” he advised.
Editor’s note: Wisconsin Attorney General J.B. Van Hollen and his office did not return calls seeking clarification of the state’s position on same-sex Wisconsin couples married out of state. Van Hollen opposes marriage equality and, along with Gov. Scott Walker, refused to defend the state’s domestic partner registry law from a suit brought by the anti-gay group Wisconsin Family Action.
Laws for same-sex couples to consider
Statute 765.30(1)(a) of the Wisconsin code states that “any person residing and intending to continue to reside in this state who goes outside the state and there contracts a marriage prohibited or declared void under the laws of this state” can be fined up to $10,000 or imprisoned for up to nine months, or both.
Wisconsin voters amended the state Constitution in 2006 to include the following language: “Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.”
On June 26, the U.S. Supreme Court struck down Section 3 of the 1996 Defense of Marriage Act, clearing the way for same-sex couples legally married at the state level to receive federal marriage benefits. But Section 2 of DOMA remains in effect. It says: “No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.”
The Milwaukee Fire and Police Commission recently added sexual orientation and gender expression to its list of characteristics that make citizens especially vulnerable to police bias.
The two characteristics were included in the Milwaukee Police Department’s Standard Operating Procedures, under SOP 001, in response to a sugggestion from Chris Ahmuty, executive director of the ACLU of Wisconsin. After noticing that the categories were missing from the original text, Ahmuty brought the oversight to the commission’s attention. Commissioner Richard Cox made the motion for inclusion, using language suggested by out FPC chair Sarah Morgan.
“The fire and police commission is always working to move forward to make good changes,” Morgan said. “There’s a new training program called Fair and Impartial Policing, and I think this is part of a more advanced level of cultural competency that’s based on identifying biases.”
Inclusion of sexual orientation and gender identity n the very first SOP could have symbolic impact, Ahmuty said, by communicating to officers in the field that sensitivity toward LGBT people is a top priority.
Ahmuty described the department’s SOPs as directives or rules that function as a code of conduct. “This directive is partly reiterating the chief’s worldview and partly instruction to officers, particularly to those conducting training,” he said.
“This is a great first step in addressing the gulf that exists between many transgender and gender non-conforming residents and the Milwaukee Police Department,” said Loree Cook-Daniels, of the Milwaukee-based transgender advocacy group FORGE. “We thank the ACLU for helping make this happen, and look forward to working with them and the MPD on next steps in its implementation.”
The new directives come at a time when the MPD is under increased scrutiny from the ACLU. Four Milwaukee police officers face multiple felony counts in connection with unauthorized rectal searches, including some without protective gloves. As a result, federal investigators are looking into an alleged pattern of illegal body cavity searches at the MPD’s District Five.
The FBI also is conducting a civil rights investigation into the death of Derek Williams, who died while in Milwaukee police custody in July 2011.
MPD officials, the district attorney’s office and the Fire and Police Commission all concluded the officers involved did nothing wrong after viewing a video of Williams begging for help as he sat handcuffed and choking to death in the back seat of a squad car. But all three reopened their inquiries after the Milwaukee Journal Sentinel posted the squad video online, creating a massive public uproar.
An inquest into Williams’ death was ongoing as WiG went to press. Two officers have been offered immunity in the case in exchange for their testimony.