SAME-SEX MARRIAGE: IS WISCONSIN IMPACTED?

The US Supreme Court released two long-awaited and hard fought opinions affecting the status of same-sex marriage in the US. While neither decision affects the majority of States that do not recognize same-sex marriage, nor addresses whether same-sex marriage is constitutional, they are decisive steps toward acceptance and inclusion.

It seems to me that, in a generation or two, law students will be reading these decisions with the same sense of wonderment I had when reading opinions about inter-racial marriages. In particular, I remember Loving v. Virginia, 388 U.S. 1 (1967), which invalidated laws prohibiting inter-racial couples to marry. I was astonished by the Virginia judge who allowed the married couple to avoid serving jail sentences if they agreed to leave the state for 25 years – leave their home, their family, and the semblance of life together as they knew it. It seems incredible that the Loving decision was as recent as 1967.

Wisconsin amended its Constitution in 2006 to define marriage as between a man and a woman. Unless Wisconsin repeals the amendment and enacts laws recognizing marriage between same-sex couples, today's decisions will not significantly affect Wisconsin citizens. Same-sex marriages will neither be consummated nor recognized by the State of Wisconsin moving forward. For Wisconsin same-sex couples who were married in another state, the federal government will recognize their marriages equally with opposite sex marriages, and the federal government is currently preparing rules for federal agencies to ensure equal treatment in sharing federal benefits in light of the DOMA decision. Longer term, what these decisions demonstrate is that Wisconsin is likely to be on the wrong end of history unless it makes changes in the future and recognizes same-sex marriage at the State level.

US v. Windsor: The federal Defense of Marriage Act (DOMA)Ms. Windsor challenged DOMA, asserting that her inability to recover estate tax exemption upon the dispersal of her wife’s estate, to the tune of about $363,000, violated her Fifth Amendment right to be treated equally to heterosexual spouses. DOMA defines both “marriage” and “spouse” for a multitude of federal regulations, including tax laws, to expressly exclude same-sex marriages. Ms. Windsor and her wife had a legal marriage in Canada that was legally recognized by their home state of New York.

After first deciding that the controversy was properly before the Court, it agreed with Ms. Windsor, holding that DOMA violates same-sex couples’ Fifth Amendment right to equal protection of the laws and is therefore unconstitutional. The Court outlined that, although DOMA is a federal law bearing on martial rights and privileges, slip op. at 15, the regulation of marriage is left to the States, such as the legal age for marriage, and the “degree of consanguinity,” or how closely related the parties can be, slip op. at 18. By excluding same-sex couples, DOMA excluded the very class of citizens that New York expressly sought to include, stating that

DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities. By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect.

Slip op. at 22. For same-sex couples who live in the 13 States that recognize their marriages, this holding now gives them rights under the federal law as well. It does not, however, give same sex couples living in States that do not recognize their marriages any state or federal rights. Wisconsin is part of this latter category.

Hollingsworth v. Perry: California’s Proposition 8The US Supreme Court’s holding effectively reverts the issue of whether California recognizes marriage between same-sex couples back to “yes, it does.” The issue arose after a California Supreme Court decision recognized the right of same-sex couples to marry. In response, voters passed a Constitutional Amendment (Proposition 8) to limit the definition of marriage as between a man and woman.

A California same-sex couple then challenged the federal constitutionality of the amendment to the State Constitution, naming the governor and other officials as respondents. The District Court agreed, holding Proposition 8 was unconstitutional and recognized their right to marry; the governor and state officials chose not to appeal the decision. A group of citizens took up the cause and appealed. The US Supreme Court decision today held that, the series of appeals that comes after the District Court decision cannot stand because the group of citizens, the petitioners, lacked standing to do. “Here, however, petitioners had no ‘direct stake’ in the outcome of their appeal. Their only interest in having the District Court order reversed was to vindicate the constitutional validity of a generally applicable California law.” Slip op. at 7.

Today’s decision reestablishes State recognition of same-sex marriages in California, and when coupled with the decision in Windsor, federal recognition as well.

Bottom line, in the 13 States like California that recognize same-sex marriages, there will now be consistent treatment at the State and federal level for same-sex married couples. In the remaining States, including Wisconsin, treatment will vary between the State and federal governments. Change is obviously coming fast, but it will be harder to achieve in states like Wisconsin that amended their State constitutions. Amending a state constitution is a much more momentous and costly project than changing a law in a state legislature.The US Supreme Court released two long-awaited and hard fought opinions affecting the status of same-sex marriage in the US. While neither decision affects the majority of States that do not recognize same-sex marriage, nor addresses whether same-sex marriage is constitutional, they are decisive steps toward acceptance and inclusion.

It seems to me that, in a generation or two, law students will be reading these decisions with the same sense of wonderment I had when reading opinions about inter-racial marriages. In particular, I remember Loving v. Virginia, 388 U.S. 1 (1967), which invalidated laws prohibiting inter-racial couples to marry. I was astonished by the Virginia judge who allowed the married couple to avoid serving jail sentences if they agreed to leave the state for 25 years – leave their home, their family, and the semblance of life together as they knew it. It seems incredible that the Loving decision was as recent as 1967.

Wisconsin amended its Constitution in 2006 to define marriage as between a man and a woman. Unless Wisconsin repeals the amendment and enacts laws recognizing marriage between same-sex couples, today's decisions will not significantly affect Wisconsin citizens. Same-sex marriages will neither be consummated nor recognized by the State of Wisconsin moving forward. For Wisconsin same-sex couples who were married in another state, the federal government will recognize their marriages equally with opposite sex marriages, and the federal government is currently preparing rules for federal agencies to ensure equal treatment in sharing federal benefits in light of the DOMA decision. Longer term, what these decisions demonstrate is that Wisconsin is likely to be on the wrong end of history unless it makes changes in the future and recognizes same-sex marriage at the State level.

US v. Windsor: The federal Defense of Marriage Act (DOMA)Ms. Windsor challenged DOMA, asserting that her inability to recover estate tax exemption upon the dispersal of her wife’s estate, to the tune of about $363,000, violated her Fifth Amendment right to be treated equally to heterosexual spouses. DOMA defines both “marriage” and “spouse” for a multitude of federal regulations, including tax laws, to expressly exclude same-sex marriages. Ms. Windsor and her wife had a legal marriage in Canada that was legally recognized by their home state of New York.

After first deciding that the controversy was properly before the Court, it agreed with Ms. Windsor, holding that DOMA violates same-sex couples’ Fifth Amendment right to equal protection of the laws and is therefore unconstitutional. The Court outlined that, although DOMA is a federal law bearing on martial rights and privileges, slip op. at 15, the regulation of marriage is left to the States, such as the legal age for marriage, and the “degree of consanguinity,” or how closely related the parties can be, slip op. at 18. By excluding same-sex couples, DOMA excluded the very class of citizens that New York expressly sought to include, stating that

DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities. By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect.

Slip op. at 22. For same-sex couples who live in the 13 States that recognize their marriages, this holding now gives them rights under the federal law as well. It does not, however, give same sex couples living in States that do not recognize their marriages any state or federal rights. Wisconsin is part of this latter category.

Hollingsworth v. Perry: California’s Proposition 8The US Supreme Court’s holding effectively reverts the issue of whether California recognizes marriage between same-sex couples back to “yes, it does.” The issue arose after a California Supreme Court decision recognized the right of same-sex couples to marry. In response, voters passed a Constitutional Amendment (Proposition 8) to limit the definition of marriage as between a man and woman.

A California same-sex couple then challenged the federal constitutionality of the amendment to the State Constitution, naming the governor and other officials as respondents. The District Court agreed, holding Proposition 8 was unconstitutional and recognized their right to marry; the governor and state officials chose not to appeal the decision. A group of citizens took up the cause and appealed. The US Supreme Court decision today held that, the series of appeals that comes after the District Court decision cannot stand because the group of citizens, the petitioners, lacked standing to do. “Here, however, petitioners had no ‘direct stake’ in the outcome of their appeal. Their only interest in having the District Court order reversed was to vindicate the constitutional validity of a generally applicable California law.” Slip op. at 7.

Today’s decision reestablishes State recognition of same-sex marriages in California, and when coupled with the decision in Windsor, federal recognition as well.

Bottom line, in the 13 States like California that recognize same-sex marriages, there will now be consistent treatment at the State and federal level for same-sex married couples. In the remaining States, including Wisconsin, treatment will vary between the State and federal governments. Change is obviously coming fast, but it will be harder to achieve in states like Wisconsin that amended their State constitutions. Amending a state constitution is a much more momentous and costly project than changing a law in a state legislature.