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Wisconsin same-sex marriage ban ruled invalid (UPDATED)

UPDATED 8:55 p.m.  Citing press reports that some county officials would begin immediately to issue marriage licenses to same-sex couples, state officials asked the district judge to put her ruling on hold promptly, and make clear it was not intended to go into effect so quickly.


Finding a close link between a right to marry and equality of citizenship, a federal judge in Wisconsin on Friday afternoon struck down that state’s ban on same-sex marriage along with a ban on recognizing marriages of such couples performed in other states.  The ruling was the latest in an unbroken series of federal trial court decisions against those restrictions in recent months.

U.S. District Judge Barbara B. Crabb of Madison did not formally order state officials to stop enforcing the bans, saying she would rule later on the plea by state officials to put her ruling on hold while they appeal.  Thus, the bans remain in effect for the time being.   She gave both sides in the case a chance to file their views on whether a postponement in this case should be affected by the Supreme Court’s refusal earlier this week to block same-sex marriages in Oregon.

Wisconsin’s “Referendum 1” banning same-sex marriage was approved by the state’s voters eight years ago by a margin of fifty-nine to forty-one percent.  That amendment to the state constitution, Judge Crabb wrote, “represents a rare, if not unprecedented, act of using the Wisconsin constitution to restrict constitutional rights rather than expand them and to require discrimination against a particular class.”

Because laws already on the books in 2006 had limited marriage to opposite-sex couples, the judge noted, “enshrining the ban in the state constitution seems to suggest that the amendment had a moral rather than practical purpose….I conclude that [state officials] have failed to show that the ban furthers a legitimate state interest.”

The judge asked attorneys in the case to file, within the next ten days, a proposed order to put her decision into legal effect.  If they wish, she added, they could also file by then their comments on a pending plea by state officials to delay her ruling.  Such added filings would take into account the impact, if any, of the Supreme Court’s refusal on Wednesday to order an end to same-sex marriages in Oregon.  (In Wisconsin, state officials are defending their ban, while state officials in Oregon have refused to do so; the attempt to stop such marriages in Oregon was pursued in the Supreme Court by a private advocacy group that opposes same-sex marriage, the National Organization for Marriage.)

As other judges have done in nullifying same-sex marriage bans, Judge Crabb relied in prt upon the Supreme Court’s U.S. v. Windsor decision late last June striking down a key part of the federal Defense of Marriage Act, even though that ruling did not apply to state bans on such marriages.

Citing the Windsor decision, along with “the many [court] decisions that have invalidated restrictions on same-sex marriage since Windsor,” the judge wrote, “it appears that courts are moving toward a consensus that it is time to embrace full legal equality for gay and lesbian citizens.  Perhaps it is no coincidence that these decisions are coming at a time when public opinion is moving quickly in the direction of support for same-sex marriage.”

Counting some rulings in state courts along with the string of decisions in federal district courts, there have been twenty consecutive rulings against state bans on same-sex marriages.  In fact, with the filing of a new lawsuit in North Dakota earlier today, there is now a legal challenge in every state that continues to ban such marriages.

Same-sex marriage is now fully legal in 19 states.  Bans in some other states also have fallen in court rulings, but those decisions are on hold — except in Oregon and Pennsylvania.

Recommended Citation: Lyle Denniston, Wisconsin same-sex marriage ban ruled invalid (UPDATED), SCOTUSblog (Jun. 6, 2014, 5:52 PM),