When a district court ruled that Wisconsin’s same-sex marriage ban was unconstitutional, one onlooker exclaimed, “it’s like wildfire!” What she was referring to was the recent barrage of rulings that have overturned gay marriage bans across the nation. Wisconsin joins Pennsylvania on the growing list of states that are now issuing same-sex marriage licenses.
However, unlike Pennsylvania, whose Republican governor will not challenge the ruling, Wisconsin is poised for a fight. Attorney General J.B. Van Hollen immediately responded to the ruling by declaring that he would appeal the decision. Meanwhile, county clerk offices around the state remained open extra hours over the weekend to begin issuing marriage licenses to same-sex couples.Wisconsin’s constitutional amendment banning same-sex marriage was passed in 2006. Most recently, it was challenged by the American Civil Liberties Union (ACLU) in February on behalf of eight gay couples, contending that the law violated their civil rights.
District Judge Barbara Crabb’s decision supported their claims, stating that the law was unconstitutional and “quite simply, this case is about liberty and equality, the two cornerstones of the rights protected by the United States Constitution."
Crabb also invoked the Supreme Court’s justification in U.S. v. Windsor to point to the way that courts are moving toward allowing same-sex marriage and full equal rights for gay and lesbian couples.
Her decision, though, did not include an order for county clerks to immediately allow for same-sex marriages to occur. This left the decision up to the individual counties to decide on whether to begin issuing licenses. As of Tuesday, 49 of Wisconsin’s 72 counties did so.
On Monday, Van Hollen filed an appeal against Crabb’s decision and also issued an emergency request that Crabb order all the same-sex marriages in the state to stop until the appeals process is complete. He hoped that the stay would “alleviate stress and legal uncertainty” caused by the decision. This request was denied.
As of Tuesday, the state's office of Vital Records was not processing the submitted marriage records. They were waiting for direction from the attorney general and placed the hundreds of new marriages into legal limbo. By Wednesday, though, the state began processing the licenses, despite the fact that the decision is still being appealed.
Governor Scott Walker has remained relatively silent about the topic, refusing to comment about the substance of the decision. Instead, he stated that he supports Van Hollen’s decision to repeal it since “it is correct for the attorney general…to defend the constitution of the state of Wisconsin.”In the face of a tough re-election bid, Walker has moved away from a social issues platform. Just a few weeks ago, he
stated that he was unsure whether the Wisconsin ban was in violation of the constitution, and said it was up to the judges to decide.
This statement provides a big shift from his earlier vocal support of the ban. A new poll states that 55 percent of Wisconsinites are in favor of same-sex marriage, and in 2012, the state elected the country’s first openly gay senator in Tammy Baldwin to represent Badger Land.
In addition, many believe Walker is hoping to launch a presidential bid in 2016. Both factors may have impacted his decision to remain quiet about the ruling and let his attorney general take center stage.
Walker’s likely Democratic opponent in the race, Mary Burke, was contrastingly vocal about the ruling and supporting same-sex marriage. In a statement, she said:
"Today is a great day for Wisconsin and committed couples who love each other across the state. Every loving couple should have the freedom to marry whomever they choose, and the fact that this freedom is now available in Wisconsin is something we all can and should be proud of."
Whether same-sex marriage will become a major issue in the November election is still yet to be seen and might largely rest on the state of Van Hollen’s appeal in a few months.However, when the constitutional amendment passed in 2006, a much higher percentage of voters in Wisconsin and around the country opposed same-sex marriage. The changing opinions around the state might make state Senator Glenn Grothman’s position, which blamed “liberal judges …using their courtrooms to advance their extreme left-wing agenda,” less appealing.
At the very least, other conservation politicians are defining the issue of same-sex marriage as a states’ rights issue rather than justifying their position on a moral basis. This rhetorical shift is changing the nature of the debate headed into election season.