Federal Judge Strikes Down Wisconsin’s Ban on Gay Marriage

 U.S. District Court Judge Barbara Crabb (pictured) has struck down Wisconsin's ban on gay marriage.

CrabbFrom the ruling:

It is DECLARED that art. XIII, § 13 of the Wisconsin Constitution violates plaintiffs' fundamental right to marry and their right to equal protection of laws under the Fourteenth Amendment to the United States Constitution. Any Wisconsin statutory provisions, including those in Wisconsin Statutes chapter 765, that limit marriages to a "husband" and a "wife," are unconstitutional as applied to same-sex couples.

Plaintiffs may have until June 16, 2014, to submit a proposed injunction that complies with the requirement in Fed. R. Civ. P. 65(d)(1)(C) to "describe in reasonable detail . . . the act or acts restrained or required." In particular, plaintiffs should identify what they want each named defendant to do or be enjoined from doing. Defendants may have one week from the date plaintiffs file their proposed injunction to file an opposition. If defendants file an opposition, plaintiffs may have one week from that date to file a reply in support of their proposed injunction.

I will address defendants' pending motion to stay the injunction after the parties have had an opportunity to file materials related to the proposed injunction. If the parties wish, they may have until June 16, 2014, to supplement their materials related to that motion in light of the Supreme Court's decision in Geiger v. Kitzhaber not to grant a stay in that case.

Read the ruling HERE.

The lawsuit was filed in February by the ACLU, the ACLU of Wisconsin and Mayer Brown LLP before the U.S. District Court for the Western District of Wisconsin.

Marie Carlson and Charvonne Kemp of Milwaukee (pictured); Virginia Wolf and Carol Schumacher of Eau Claire, Wis.; Roy Badger and Garth Wangemann of Milwaukee; and Judith “Judi” Trampf and Katharina “Katy” Heyning of Madison are named as plaintiffs. Read their stories here.

The Washington Blade reported the details of the suit:

The litigation seeks not only to overturn the state’s 2006 constitutional amendment barring same-sex marriage, but also to enjoin state official from enforcing a “marriage evasion law” prohibiting couples — gay and straight — from going elsewhere to marry.

The penalties of violating the marriage evasion law in Wisconsin, which is the only state to have such a statute, include up to $10,000 in fines and nine months in prison.

WisconsinSeveral county offices in Wisconsin have said they'll stay open additional hours to accommodate couples:

In anticipation of the court striking down the state's ban on gay marriage,Milwaukee County Clerk Joe Czarnezki said the county has trained additional staff and made arrangements to accommodate a rush to get licenses.

Dane County Clerk Scott McDonell said he did the same. On a typical day, the Dane County Courthouse staffs two windows for distributing marriage licenses, but McDonell said Dane could staff six if the gay marriage ban is overturned. He said he anticipates 200 or more couples showing up in a short time.

Both said additional hours — potentially on weekends — may be added to issue licenses if Crabb blocks the ban.

"Anyone who is in the courthouse by the hour indicated would still be able to be served that day," Czarnezki said. Czarnezki said how the county reacts will be a "game-day call" that will depend on the court's decision. McDonell agreed.

"This planning works whether this decision comes this week or in four weeks," McDonell said.

Waukesha County Clerk Kathleen Novack said her county is prepared to stay open additional hours to accommodate an influx of couples, though it will not offer weekend hours. Novack said her office will not train new staff members because it currently has five employees and only four computer terminals.

Crabb was appointed by President Jimmy Carter.

UPDATE: Gay U.S. Rep. Mark Pocan (WI-02) reacts:

“The federal district court in Madison took another step toward ensuring full equality for every American.  It is clear the growing momentum of support for marriage equality will put an end to discriminatory laws that treat LGBT couples as second-class citizens.  In ruling after ruling, it has become unmistakable that the promise of America is everyone should be treated equally and with dignity.  Today’s ruling brings us one step closer to fulfilling that promise.”


  1. Matt says

    Just started to read through the ruling, but I’m surprised that the judge is waiting 10 days to issue an actual order/injunction and that the plaintiffs apparently haven’t yet identified exactly how they want the court to rule.

  2. Mike says

    In Madison, judges are outside the City/County building marrying couples this evening. They are opened til 9pm this evening and will be opened Saturday from 9-5.

  3. Zlick says

    Well, Judge Crabb likes to go on and on in her ruling, which – as I’ve done with all the others – I am delighting in reading. But it’s taking awhile. Fortunately, I love everything she says.

  4. Mike says

    I just talked to someone from the ACLU of Wisconsin, here in Madison. Crabb has given the plaintiffs till the 16th to tell the court what they want out of the ruling. After that she will rule on any motions from the state. What that means is that every county can decide for themselves what to make of the ruling. Dane county has decided to allow gay marriage. So, there’s a window till the plaintiffs decide what they want for gay folks to get married.

    The ACLU is partying at the Shamrock in Madison. Stop on down!

  5. Zlick says

    And, with many pages still to go, because she wanted to exhaust any guidance from SCOTUS or the 7th Circuit on the appropriate level of scrutiny to be applied to sexual orientation discrimination cases, Judge Crabb finds on her own that we DO deserve heightened scrutiny – specifically the same “intermediate” level of scrutiny that applies to sex discrimination.

    Judge Crabb is being very – I’d say “ultra” – thorough. It seems to me she’s going to great lengths to make her ruling appeal-proof. I’m still plugging away at it.

  6. Hansel Currywurst says

    Can the plaintiffs ask for a free cake as reparation for past oppression? How about the honeymoon suite at the Four Seasons (although in Wisconsin it may only be two seasons, cold and not so cold)?

  7. Just_a_guy says

    Indiana, Ohio, Michigan: we’re watching you! If those three states fall in line, don’t we have marriage equality (finally) in the entire northeast corner of the country?!!

    P.s. I’ve always loved you from afar and knew you’d come around, Wisconsin!

    P.p.s. Psst, Nancy Grace: you tried to say Anita Bryant was a “lady”; you were wrong to treat her with that kind reference. By contrast, the honorable Barbara Crabb has certainly shown herself an esteemed lady for the history books.

    @zlick: I love you for slogging through the full opinion right now, as folks like me just don’t have the time at the moment

    As always, thank you tr :)

  8. will says

    California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, & Wisconsin.

    19 and counting. We’re getting close to the halfway point.

  9. Zlick says

    And … done. Judge Crabb did not conclude with the poetic language of the last two cases (Oregon and, um, was it Arkansas? I can’t keep them straight at this rate). But in any event, her reasoning was through and unwavering and she pointed out several times that, essentially, the writing’s on the wall. Public opinion and judicial decisions are moving rapidly in one direction only.

    Game Over, Bigots!

  10. Carmelo says

    Wait… What does this have to do with impoverished trans lesbian womyn of color?! This can’t possibly be on towleroad without that ever important detail! Otherwise it’s just another article detailing white cis privilege!

  11. simon says

    Hansel Currywurst:
    Milwaukee can be very hot in summer. The temperature can hit 100 F for a few days.
    Not sure if Wisconsin governor Walker will appeal. This guy is not exactly a teabagger. He is more like Christie. There is a chance he will let it pass.

  12. Josh says

    @SIMON Scott Walker is definitely a teabagger type. He and Paul (Mr. Catholic deerhunter ‘Obama will end Western civilization’) Ryan are cut from the same cloth.

  13. Jim says

    Marriage evasion law? Incredible! How could such a transparently unconstitutional law ever be on the books much less enforced? As if any state could prohibit an American citizen from getting married outside its borders.

  14. Mike says

    WI marriage evasion laws were passed about 100 years ago. They were originally meant to protect Wisconsin against Southern states that let someone marry a minor or a cousin, then bring that person back to the state as their spouse.

  15. TKinSC says

    Haven’t read the ruling yet, but if I read the article correctly, no injunction has yet been issued. Hence any same-sex “marriages” that are taking place in Wisconsin are as illegal today as they were yesterday.

  16. tkinsc says

    I am as stupid today as I was yesterday. My stupid pseudo-legal analysis was not based on reality and ran counter to every legal opinion of every federal judge. My “opinion” even contradicts that of judge Scalia.
    Scalia says that the court’s holding – while limited to the Defense of Marriage Act – is a sure sign that the majority is willing to declare gay marriage a constitutional right.
    How about that? I am going to off myself when that happens.

  17. emjayay says

    Well, it’s sort of looking like it’s over isn’t it? I mean, clearly Satan has knocked out all the columns and the sky is definitely falling now.

    Everyone who shook their heads in agreement to that, please move to Uganda. Now.

    Thank you.

  18. Josh says

    @SIMON I appreciate that. But I don’t have any faith in the sincerity of these people on any single statement they make. Jennifer Rubin is a whack job, btw. The Rethugs from Rand Paul to Bobby Jindal to Marco Rubio don’t care about logic, honesty, or consistency–only power. This principle has been shown a thousand-fold over. Walker is running for re-election in a blue state this year, but the 2016 presidential primary is a different animal.

    So, regardless of any post from Jennifer Rubin, Scott Walker through his own actions has shown who he is. The fact that he knows it’s good politics to stay above the fray and let the AG handle what he knows will be a losing appeal shows him to be intelligent, not a moderate.

  19. Josh says


    Just to be clear, Scott Walker’s record is supporting the marriage ban AND opposing the state’s 2009 domestic partner law. As the article explains, that law is under threat from Wisconsin’s conservative Supreme Court.

    Scott Walker wants to keep the marriage ban and for the domestic partner law to be discarded. Those are his stated positions. Political expediency is totally separate from his ideology.

    I sure as hell don’t want any Republican aholes tilting our nation’s Supreme Court even further to the right. That’s exactly what Walker would do as president.

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