On June 6 Senior U.S. District Judge Barbara B. Crabb issued her decision in Wolf v. Walker, granting summary judgment to plaintiffs challenging Wisconsin’s constitutional and statutory ban on same-sex marriages in a suit filed in February by the American Civil Liberties Union. Because some of the eight plaintiff couples were already married elsewhere, her decision covered both the right to marry and the right to recognition of existing marriages. County clerks in Milwaukee and Madison, eager to issue licenses to same-sex couples, noted Judge Crabb’s failure to stay her ruling pending appeal and kept their offices open late, and by the end of the day almost 130 couples had married in the two cities and the state’s attorney general, J.B. Van Hollen, had contacted the court seeking an emergency stay of the ruling, indicating the intentions of Governor Scott Walker and the other state defendants to appeal.
This was not how Judge Crabb apparently foresaw things playing out. She concluded her opinion by granting the plaintiffs’ motion, denying the motion by the state defendants to dismiss the case, and giving the plaintiffs until June 16 to file their suggested language for the injunction she would issue, with further time for the defendants to respond and the plaintiffs to respond further. She also gave the defendants until June 16 to supplement their motion for a stay in order to respond to the Supreme Court’s action a few days earlier denying a petition by the National Organization for Marriage (NOM) to stop same-sex marriages in Oregon while NOM appealed District Judge Michael McShane’s denial of its motion to intervene to defend Oregon’s marriage ban. Clearly, Judge Crabb expected that her decision would not be implemented right away.
But the county clerks, who had not joined the state’s motion to dismiss and clearly are not interested in appealing Judge Crabb’s ruling, were eager to act, having anticipated the decision and having already alerted their staffs to prepare for an expected flood of marriage license applications. Seeing that Crabb’s opinion did not include a stay, they announced late Friday hours and Saturday hours to accommodate the eager brides and grooms to be.
Judge Crabb was appointed to the district court in 1979 by President Jimmy Carter and took senior status in 2010. Her decision, the twentieth consecutive trial court ruling in favor of marriage equality since the first was issued in December by Utah federal district judge Robert Shelby, filled 88 pages of typescript and, were it the first to be issued, might be considered a revolutionary step, but at this point had the strong quality of a “me too” exercise.
Relying heavily on the Supreme Court’s ruling last year in U.S. v. Windsor, she found that the right to marry at stake in this case is a fundamental right protected by the 14th Amendment’s Due Process Clause. “In sum,” she wrote,”I conclude that Wisconsin’s marriage amendment and the Wisconsin statutes defining marriage as requiring a ‘husband’ and a ‘wife’ significantly interfere with plaintiffs’ right to marry, so the laws must be supported by ‘sufficiently important state interests’ that are ‘closely tailored to effectuate only those interests,’ Zablocki, 434 U.S. at 388, in order to survive constitutional scrutiny.” She also found that excluding same-sex couples from marriage raised a potential issue of discrimination on the basis of sex or sexual orientation in violation of the Equal Protection Clause. However, she refrained from basing her analysis on sex discrimination in light of the disagreement among courts about whether marriage equality cases should be resolved in that way, prefering instead to focus on sexual orientation discrimination, as to which she included that some form of heightened scrutiny should be used to evaluate the state’s justifications.
Judge Crabb hedged her bets, as many of the other federal judges have done in marriage equality cases, by concluded that the Wisconsin marriage bans would not survive any level of judicial review. In a detailed consideration of every justification argued by the state, she concluded that none of them would save the ban from constitutional infirmity.
“In light of Windsor and the many decisions that have invalidated restrictions on same-sex marriage since Windsor, it appears that courts are moving toward a consensus that it is time to embrace full legal equality for gay and lesbian citizens,” she wrote. “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. Citing these changing public attitudes, defendants seem to suggest that this case is not necessary because a majority of Wisconsin citizens will soon favor same-sex marriage, if they do not already. Perhaps it is true that the Wisconsin legislature and voters would choose to repeal the marriage amendment and amend the statutory marriage laws to be inclusive of same-sex couples at some point in the
future. Perhaps it is also true that, if the courts had refused to act in the 1950s and 1960s, eventually all states would have voted to end segregation and repeal anti-miscegenation laws. Regardless, a district court may not abstain from deciding a case because of a possibility that the issues raised in the case could be resolved in some other way at some other time.”
“It is well-established that “the Constitution protects persons, not groups,” she continued,” so regardless of possible future events affecting the larger community, my task under federal law is to decide the claims presented by the plaintiffs in this case now, applying the provisions in the Fourteenth Amendment as interpreted by the Supreme Court in cases such as Loving, Romer, Lawrence and Windsor. Because my review of that law convinces me that plaintiffs are entitled to the same treatment as any heterosexual couple, I conclude that the Wisconsin laws banning marriage between
same-sex couples are unconstitutional.”
Thus, unless this ruling is stayed by Judge Crabb or the U.S. Court of Appeals for the 7th Circuit or the Supreme Court (if the 7th Circuit refuses to act), Wisconsin will be the 20th marriage equality state. Some sources indicate that a majority of same-sex couples in the United States now reside in marriage equality states, which comprise more than 40% of the nation’s population. With the exception of a Louisiana district judge who dismissed a marriage equality ruling on procedural grounds last November, every trial judge has ruled for marriage equality since the Windsor decision, and as a result of a new case filing in North Dakota this week, every state that bans same-sex marriage is now facing a lawsuit, either challenging the ban directly or challenging the state’s refusal to recognize same-sex marriages contracted elsewhere. In less than a year since Windsor, the campaign for marriage equality has embraced the entire nation and the question is not whether the Supreme Court will confront this question next term, but rather which of the many pending cases will be the vehicle for that decision.