Welcome to the club, Wisconsin. A federal judge overturned the state's ban on same-sex marriage on Friday, making the state the latest to see its ban struck down in the face of a court challenge. U.S. District Court Judge Barbara Crabb declared that the state's constitutional amendment barring same-sex marriages violates the Fourteenth Amendment of the U.S. Constitution.
In her decision, Crabb wrote:
This case is not about whether marriages between same-sex couples are consistent or inconsistent with the teachings of a particular religion, whether such marriages are moral or immoral or whether they are something that should be encouraged or discouraged. It is not even about whether the plaintiffs in this case are as capable as opposite-sex couples of maintaining a committed and loving relationship or raising a family together. Quite simply, this case is about liberty and equality, the two cornerstones of the rights protected by the United States Constitution.
Crabb's decision also addresses whether the Supreme Court's Windsor decision against the Defense of Marriage Act supports arguments for or against preserving state bans (both the plaintiffs and the defendants in many of these legal challenges have claimed that Windsor is on their side). That reasoning includes the what is now customary trolling of Justice Scalia's dissent in that case:
On its face, Windsor does not apply to state law bans on marriage between same-sex couples...However, as noted by Justice Scalia in his dissent, it is difficult to cabin the Court’s reasoning to DOMA only. If anything, the Court’s concerns about the “second-class status” imposed by DOMA on same-sex couples would be more pronounced by a total denial of the right to marry than by the “second-tier” marriages at issue in Windsor that provided state but not federal benefits. Further, although Windsor involved a federal law rather than a state law, I am not aware of any other case in which the Court applied equal protection principles differently to state and federal government.
There seems to be a little confusion on whether Crabb's order means that marriages can start today Same-sex couples are lining up in at least one county clerk's office, and Milwaukee County has already announced that it'll stay open late tonight to marry couples. But Buzzfeed's Chris Geidner says that the order as written can't go into effect immediately. Instead, it looks like Crabb will decide whether or not to stay the decision legalizing same-sex marriage in the state later this month.
This article is from the archive of our partner The Wire.
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