Judge Strikes Down Wisconsin Same-Sex Marriage Ban

A federal judge struck down Wisconsin's ban on same-sex marriage as unconstitutional Friday, the latest in a string of such decisions. The U.S. District Judge Barbara Crabb neither stayed the ruling nor clarified if it takes effect immediately, causing confusion over whether gay licenses could now be issued.

"Increasingly, Americans are being forced to celebrate unions that not only step on free speech and religious liberty but also deny children a mom and a dad," said Tony Perkins, president of the Family Research Council, in a statement in response to Crabb's ruling.  "Those pushing for the redefinition of marriage have long since moved from a 'live-and-let-live' mentality. Their efforts are creating serious inequality as people are forced to suppress or violate the basic teachings of their faith, or face legal repercussions and harassment."

FRC noted that Crabb has a history of rulings that are hostle toward religious expression, including a 2010 ruling that the National Day of Prayer was unconstitutional and a 2013 ruling that tax-exempt housing allowanaces are unconstitutional.  

"Once again, she has neglected to consult the Constitution that she was sworn to uphold," commented Perkins.  "This is why it's not surprising that she would display similar contempt for the right of Wisconsin voters to preserve marriage as it has always been defined."

Despite the lack of clarity on whether same-sex marriages could now legally be held in the state, officials in at least two counties issued marriage licenses to gay couples, prompting Wisconsin Attorney General J.B. Van Hollen to file an emergency motion to stay the ruling.

Milwaukee County asked the courthouse to remain open late Friday to allow same-sex couples to marry. And licenses were issued also in Dane County, including in the state capital of Madison, according to Reuters.

Van Hollen said in a statement that the "current law remains in force."

"In light of the decision of some county clerks to issue marriage licenses to same-sex couples, I will be filing emergency motions in the federal courts to stay Judge Crabb's order," the attorney general said. "The United States Supreme Court, after a referral from Justice Sotomayor, stayed a lower court's decision striking down Utah's ban on same-sex marriage. There is no reason to believe the Supreme Court would treat Wisconsin's ban any differently."

"I conclude that the Wisconsin laws prohibiting marriage between same-sex couples interfere with plaintiffs' right to marry, in violation of the due process clause, and discriminate against plaintiffs on the basis of sexual orientation, in violation of the equal protection clause,"  Judge Crabb wrote in the 88-page decision in the lawsuit filed by the American Civil Liberties Union on behalf of eight same-sex couples.

Van Hollen said the decision is a "setback." "We'll continue to defend the constitutionality of our traditional marriage laws and the constitutional amendment, which was overwhelmingly approved by voters," he said. "I will appeal."

Groups supporting gay marriage celebrated.

"Across the country, the courts agree: Same-sex couples and their families need the dignity of marriage, and anti-marriage laws are indefensible," Evan Wolfson, president of Freedom to Marry, said in a statement. "Today's decision in Wisconsin underscores that all of America is ready for the freedom to marry. It's time now for the Supreme Court to bring resolution nationwide."

On Wednesday, the highest court in Oregon denied a plea by the National Organization for Marriage to stay last month's ruling that allowed for gay marriages in the state. "The application for stay presented to Justice [Anthony] Kennedy and by him referred to the Court is denied," said the order.

The ban in Oregon was approved by 57 percent of voters in 2004 following a brief period when Multnomah County issued marriage licenses to same-sex couples. As many as 3,000 licenses were issued before a judge halted the practice. Later, the Oregon Supreme Court annulled the marriages.

After last month's ruling, Democratic Attorney General Ellen Rosenblum of Oregon said he will not defend the ban. She believes no legal arguments can support it given last year's decisions by the U.S. Supreme Court. Democratic Governor John Kitzhaber also supports same-sex marriage.

Federal judges in many states have struck down state amendments and laws banning same-sex marriage as unconstitutional since the U.S. Supreme Court last June squashed a key part of the federal Defense of Marriage Act, or DOMA.

Excluding Wisconsin, same-sex marriage is currently recognized in 19 states – California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington – and the District of Columbia.

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