Placing another “W” in the winning streak for marriage equality, U.S. District Judge Barbara Crabb, a Carter appointee, ruled that Wisconsin’s ban on same-sex marriage violates the U.S. Constitution.
Like the more than a dozen judges who preceded her, Crabb ruled that this was a case about “liberty and equality, the two cornerstones of the rights protected by the U.S. Constitution.” “If the state is going to deprive an entire class of citizens of a right as fundamental as marriage,” she wrote, “then it must do more than say ‘this is the way it has always been’ or ‘we’re not ready yet.'”
One of the arguments the state made was that the government should not have to subsidize same-sex relationships, citing case law about not subsidizing abortions. Crabb pointed out that because the state does offer marriage licenses to some, “the comparison to abortion would be on point only if, in the cases cited, the state had decided to fund abortions for heterosexual women but not for lesbians.” Further, the government essentially has a monopoly on marriage licenses; whereas a woman could seek an abortion somewhere else without government funding, a couple’s only source for a marriage is the state.
Like several other judges have concluded, Crabb also ruled that sexual orientation discrimination is subject to “heightened scrutiny” — in other words, people with same-sex orientations are a politically vulnerable group and the court should be more suspicious about whether a law discriminates against them. There is no jurisprudence in the Seventh Circuit on that specific question, so if this ruling is upheld, it could create new precedent in that regard.
The ruling addressed the tried-and-false arguments related to procreation, with Crabb puzzled as to why the state’s arguments that same-sex couples can’t procreate wouldn’t also suggest that different-sex couples who cannot or wish not to procreate should also be banned from marrying. She reasoned that the argument had no merit because there has never been stigma against couples who don’t have children, “beginning with America’s first family, George and Martha Washington, who had no biological children of their own.”
“Because my review of that law convinces me that plaintiffs are entitled to the same treatment as any heterosexual couple,” Crabb concluded, “the Wisconsin laws banning marriage between same-sex couples are unconstitutional.
The ruling does not specify when it should take effect, and Attorney General J.B. Van Hollen had already filed a request for a stay. Given the ambiguity of Crabb’s ruling, he asserted Friday afternoon that the ban “remains in force.” However, Dane County Clerk Scott McDonnell has indicated that he is keeping his office open late and intends to begin offering marriage licenses to same-sex couples. He also plans to bring in extra staff throughout the weekend to help meet the demands of couples waiting to marry.