Last week’s unanimous decision by a three-judge federal appeals court declaring Wisconsin’s same-sex marriage ban unconstitutional was so strong that it could be one of the cases that makes it up to the U.S. Supreme Court.
Republican Gov. Scott Walker and state Attorney General J.B. Van Hollen are firmly committed to defending the ban, which has now been declared unconstitutional by two federal courts.
On Tuesday, Van Hollen asked the U.S. Supreme Court to review the latest decision, written by Ronald Reagan-appointed Judge Richard Posner for the U.S. 7th Circuit Court of Appeals, which means that same-sex couples aren’t allowed to get married in Wisconsin just yet.
But Chris Ahmuty, executive director of the American Civil Liberties Union (ACLU) of Wisconsin, which litigated the case on behalf of eight same-sex couples in federal court, said he fully expected the U.S. Supreme Court to take on the issue of same-sex marriage soon, and that the Wisconsin case is so decisive that it could be among the handful of cases that the court would consider.
“Our case and Judge Posner’s decision are particularly clean,” Ahmuty said. “It zeroes in on equal protection.”
Ahmuty said the ACLU was honored to represent the eight couples who sued to overturn the ban and participate in the wave of legal cases and the transformation of public opinion that validate same-sex marriage.
“It’s exhilarating because in the world today and in Wisconsin today, justice often takes a beating,” Ahmuty said. “So when you see that here is a movement in the direction of equality and liberty, it really gives you a sense of hope for the future. Not just for the freedom to marry but for social justice as a whole.”
He said a favorable ruling by the Supreme Court on same-sex marriage could go a long way toward eliminating government and private sector discrimination against lesbians and gays as well.
Wisconsin Will Have a New AG in January
Although Wisconsin’s case could be taken up by the Supreme Court, one wrinkle is the court’s calendar and the political calendar.
Ahmuty said the U.S. Supreme Court typically selects its cases in October for the coming term. He said it may select one or two marriage equality cases and leave itself enough flexibility to select another case.
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Van Hollen, of course, is not running for re-election so Wisconsin will vote for a new state attorney general in November. The winner will take office in January 2015.
The two candidates running for AG have vastly different opinions about the state’s same-sex marriage ban.
Like Van Hollen, Republican Brad Schimel has said he has an “obligation” to defend the ban.
Democrat Susan Happ said she would not defend the ban and has called on Van Hollen to stop his appeal.
In response to last week’s decision, Happ released a statement to the Shepherd: “When three federal judges unanimously say the law is discriminatory and unconstitutional and that the state’s arguments are totally implausible, it is time to face reality and accept the decision. People have a right to marry who they love.”
Like the candidates for attorney general, the gubernatorial candidates are split on the ban. Walker supports the ban, while Democratic candidate Mary Burke opposes it and says the appeal is a waste of taxpayer money.
Wisconsin’s Case Is ‘So Full of Holes’
Posner’s decision, released just nine days after the court heard oral arguments, included gleeful attacks on Wisconsin’s opponents of same-sex marriage—the Walker administration and attorneys from Van Hollen’s Department of Justice. Posner took aim at their reverence for tradition, their belief that banning same-sex marriage protects children and their lack of evidence that marriage equality hurts heterosexual marriages.
Posner found their arguments on behalf of discrimination to be “so full of holes it cannot be taken seriously,” “irrational, and therefore unconstitutional” and “totally implausible.”
And he didn’t think much of Wisconsin’s 2006 referendum banning same-sex marriage, either.
“Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law,” he wrote.
Posner also couldn’t understand why Wisconsin’s officials were confused by U.S. District Judge Barbara Crabb’s June decision striking down the marriage ban.
After Crabb’s decision, individual county clerks issued marriage licenses to same-sex couples for a brief time; Van Hollen went so far as claiming that they could be prosecuted for issuing licenses to same-sex couples.
Crabb then issued an injunction on her decision while Van Hollen appealed the case.
Posner wrote that Wisconsin’s lawyers “claim to fear the state’s being held in contempt because it doesn’t know what measures would satisfy [Crabb’s] injunction’s command that all relevant state officials ‘treat same-sex couples that same as different sex couples in the context of processing a marriage license or determining the rights, protections, obligations or benefits of marriage.’
“If the state’s lawyers really find this command unclear,” Posner continued, “they should ask the district judge for clarification. (They should have done so already; they haven’t.) Better yet, they should draw up a plan of compliance and submit it to the judge for approval.”
