Optimists believe that the United States Supreme Court’s impending rulings on California’s Proposition 8 and the federal Defense of Marriage Act (DOMA) will affirm legal marriage rights for same-sex couples.
But those potentially historic rulings may have little effect on Wisconsin—at least for now.
Short of sweeping, broad rulings by the U.S. Supreme Court, Wisconsin’s constitutional ban on same-sex marriage and civil unions will stay intact.
That said, marriage equality in Wisconsin can nevertheless be achieved.
And it’s worth fighting for.
Wisconsin Opinion Is Slowly Shifting
It’s hard to believe how quickly U.S. public opinion has changed on the question of marriage equality.
Poll after poll conducted in 2012 and 2013 have shown that a solid majority of Americans support full marriage rights for same-sex couples, a plurality that strengthened into a majority when President Barack Obama announced his support in May 2012.
In addition, high-profile elected officials from both parties have backed marriage equality and voters showed their support for every marriage equality measure on a ballot in November 2012.
Yet Wisconsinites are now out of sync with the rest of the country.
The latest poll from Marquette University shows that 42% of Wisconsinites support full marriage equality, while 26% support civil unions and 28% oppose any legal recognition of these partnerships.
That’s a positive change from 2006, when 59.4% of voters approved a constitutional ban on marriage equality and civil unions.
Although it’s the law of the land, the constitutional ban is at odds with Wisconsin’s long tradition of tolerance, said Katie Belanger, executive director of the lesbian, gay, bisexual and transgender (LGBT) civil rights group Fair Wisconsin. She noted that in 1982 Wisconsin was the first state to make sexual-orientation discrimination illegal and voters clearly supported the election of Democrat Tammy Baldwin, a lesbian, to the U.S. Senate in 2012.
“We may disagree on all of the issues of importance to the full LGBT community, but a Wisconsin value is that we treat people fairly and with respect,” Belanger said.
Marriage Equality Is a Long-Term Goal
The state’s constitutional ban remains in place, but it can be struck down if fair-minded Wisconsinites are willing to work toward the long-term goal of repealing it.
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“We really need to be focused on the long game here and look at the things that we can do today that build capacity to repeal the constitutional amendment,” Belanger said. “It’s a very complicated calculus to get to the point that we can do it.”
Legislation authorizing a constitutional amendment must be passed by two consecutive sessions of the state Legislature and then approved by a majority of voters in a statewide referendum.
Passing a bill to repeal the amendment—twice—is going to be difficult in Wisconsin’s current political climate, Belanger said.
Although Democrats won more votes in November 2012, Republicans are in the majority of both houses of the state Legislature and, thanks to their gerrymandered redistricting map, will likely retain the majority of at least one legislative chamber through 2020, when a new legislative map can be drawn.
“We’ve got to make sure that we have a Legislature that is willing to take up the issue and that we can reelect them,” Belanger said. “When that is all ready, we have to make sure we have a general public that is willing to vote in our favor. And they’re not there yet.”
Jason Burns, executive director of the Milwaukee-based LGBT rights group Equality Wisconsin, said that while state Republicans aren’t as overtly opposed to marriage equality as they have been in the past, they don’t seem to be ready to vote for a repeal of the constitutional ban either. That said, Burns told the Shepherd that he and Belanger have had constructive conversations with conservative Republican Assembly Speaker Robin Vos about issues central to the LGBT community.
“I feel that we can engage him on these issues and he may evolve on marriage equality as well,” Burns said. “He asked us to continue to engage him and have conversations with him. That [invitation] wasn’t there before.”
Public opinion will have to change as well, which is why both Equality Wisconsin and Fair Wisconsin are asking allies to reach out to those who are neutral or opposed to marriage equality and encouraging them to reconsider their views.
“A big piece of our work at Fair Wisconsin is allowing people the space to come to the conclusion that of course they need to be on board with [marriage equality] because we do have these shared values around dignity and respect and fairness,” Belanger said.
Burns said Equality Wisconsin will be conducting a poll in the coming months solely focused on LGBT issues, the first poll of its kind in many years. The organization will also launch a grassroots campaign to raise awareness of the importance of marriage equality to same-sex couples.
“We’re going to have the conversations now so we can lay the groundwork for eventual repeal of the amendment,” Burns said.
In the meantime, both organizations are working to enact legal protections for same-sex couples at the local level. Recent victories include domestic partnership benefits ordinances enacted in Appleton, Manitowoc, Milwaukee County and Racine.
Fair Wisconsin is also the sole legal defender of the statewide domestic partnership registry, enacted in 2009, against charges of unconstitutionality by one of the architects of the marriage ban, Wisconsin Family Action. The registry provides some legal protections for same-sex couples but it falls far short of all of the privileges granted to married couples.
Gov. Scott Walker and Attorney General J.B. Van Hollen, both Republicans, have refused to defend the registry, leaving Fair Wisconsin to launch its legal work. The registry has survived challenges in Dane County Circuit Court and the Fourth District Court of Appeals; Belanger said the state Supreme Court will announce within a few months if it will take up the case.
Court Decisions Could Affect Wisconsin Couples
Both Belanger and Burns were confident that the U.S. Supreme Court would rule in favor of marriage rights for same-sex couples in some way within the next few months. While those decisions likely won’t legalize marriage equality in Wisconsin, they could chip away at our constitutional ban.
Court watchers have argued that the ruling on Prop 8 will likely only apply to California, which had legalized marriage equality before voters banned it in 2008.
If the federal DOMA is struck down, the federal government would have to recognize same-sex married couples. That decision could only apply in states where same-sex marriage is legal, such as New York, Iowa and Washington.
But Burns said a ruling striking down DOMA could force Wisconsin—despite its ban—to recognize the marriages of same-sex couples who were married in states where it’s legal.
Then again, the justices could declare that same-sex marriage bans are unconstitutional and strike them down—a best-case scenario for fair-minded Wisconsinites. Or the justices could send the issue back to the states, which would have to fight for equality one by one.
“Until we see the decisions, we just don’t know what the battles will be,” Burns said.
No matter how the court ultimately rules, Belanger said marriage equality will become a reality in Wisconsin.
“I think it’s a sign of victory that we’re talking about how it is we’re going to achieve full equality, not whether we are going to achieve full equality,” Belanger said.
