June 20, 2014 – On June 6, a federal judge struck down Wisconsin’s ban on same-sex marriage, and hundreds of couples raced to get married through the power vested in county clerks and judges. Seven days later, the same judge halted same-sex marriages pending appeal, leaving couples wondering about the validity of their recent marriages.
The question is: what is the status of the approximately 700 same-sex couples who married in Wisconsin between the June 6 declaratory ruling and the subsequent June 13 order staying the enforcement of that ruling? Will these marriages be recognized?
The short answer is: it depends. Wisconsin couples will be in legal limbo while the higher courts decide whether same-sex marriage bans are unconstitutional, and whether the Wisconsin marriages that did take place from June 6 to June 13 are valid.
For many years, same-sex married couples have resided in Wisconsin. These individuals, who married in jurisdictions where the same-sex marriages are allowed, could reside in Wisconsin while enjoying a great majority of the 1,138 federal benefits, rights, and obligations of marriage, but they remained eligible for none of the state rights and benefits of marriage. That all changed on June 6, 2014, or did it?
On June 6, Judge Barbara Crabb of the U.S. District Court for the Western District of Wisconsin issued a decision holding that Wisconsin’s ban on same-sex marriage violates gay men and lesbians’ Equal Protection and Due Process rights under the U.S. Constitution. Judge Crabb also ruled that that gay men and lesbians constitute a group that deserve “heightened scrutiny” when the state distinguishes any law on the basis of sexual orientation. This standard of review is similar to the heightened level of scrutiny that applies to legal classifications based on gender.
Although the attention has been focused almost entirely on same-sex marriage, Judge Crabb’s decision, if upheld, will have a broad and substantial impact on the rights of gay men and lesbians in all facets of their lives far beyond marriage.
It is important to understand what Judge Crabb’s declaratory ruling stated and did not state about same-sex marriage. As she later clarified in a subsequent order on June 9, the ruling did not grant or deny injunctive relief.
She neither required county clerks to issue marriage licenses nor did she forbid them from doing so. “I understand defendants’ concern that some county clerks have been issuing marriage licenses to same-sex couples since I issued the June 6 decision, but that is not a result of an injunction by this court.” Judge Crabb did ultimately issue a prospective injunction on June 13, and simultaneously issued a stay delaying the enforcement of both that injunction order and her previous declaratory ruling.
Same Situation in Utah
Remarkably, a similar situation has already occurred in another state. On December 20, 2013, U.S. District Court Judge Robert J. Shelby determined that Utah’s constitutional amendment prohibiting same-sex marriage violated the rights of gay men and lesbians under the U.S. Constitution. Judge Shelby refused to grant a stay of his decision and the Tenth Circuit Court of Appeals affirmed his decision to not grant a stay.
The state of Utah appealed to the U.S. Supreme Court. In Herbert v. Kitchen, 134 S.Ct. 893 (2014), the court reversed without explanation or analysis and issued the stay. As a result, more than 900 same-sex marriages in Utah remain in legal limbo.
com christpher b-rlaw Christopher Krimmer (U.W. 1997), is a partner at Balisle & Roberson S.C. in Madison, practicing exclusively in the area of family law. He’s also an adjunct law professor at Marquette Law School. Reach him by phone at (608) 259-8702, by com christpher b-rlaw email.
These marriages occurred between the time Judge Shelby issued its decision permitting same-sex marriages and the U.S. Supreme Court’s issuance of the stay. In her June 13 order, Judge Crabb noted that she was compelled grant the stay because of the U.S. Supreme Court’s stay in the Herbert case.
The validity of the Utah marriages remains uncertain. The state of Utah’s official position is that it will not recognize those marriages, while U.S. Attorney General Eric Holder has stated that the federal government will recognize the marriages.
The same situation seems to be occurring in Wisconsin. Tammy Baldwin, the U.S. Senator from Wisconsin, along with a few congresspersons, sent a request to Attorney General Holder asking that the federal government recognize the Wisconsin same-sex marriages as valid for all federal purposes.
It seems reasonable to expect that Holder will similarly support federal recognition of Wisconsin marriages that occurred under similar circumstances in Utah. If so, Wisconsin couples who married between June 6 and 13 will enjoy all of the legal rights and remedies available to spouses under federal law.
In contrast, Wisconsin Attorney General J.B. Van Hollen has stated that his agency and the state will not consider the marriages as valid under state law.
Like the Wisconsin case, challenges to same-sex marriage bans in other states – including Utah, Ohio, Michigan, and Kentucky – are making their way through the federal circuits and the issue will undoubtedly reach the U.S. Supreme Court as soon as the next term.
Analysis of Marriage Validity
What do we, as attorneys, tell our clients regarding these same-sex marriages? First, lawyers can explain that the marriages are based on a declaratory judgment. A declaratory judgment is defined as “[a] binding adjudication that establishes the rights and other legal relations of the parties without providing for or ordering enforcement.”
Other than that, the best advice might be: “wait and see.” Other issues are percolating. At the time the marriage licenses were issued, between June 6 and June 13, the state’s marriage ban was found to be unconstitutional. The legal impediment to marry same-sex couples was arguably removed while that decision was in effect and not yet stayed.
The fact that the court did not direct the issuance of marriage licenses does not undermine the legal conclusion that the marriage ban was unconstitutional, nor does it support the conclusion that marriages occurring prior to the issuance of the stay are invalid. The authority of court clerks to issue marriage licenses to gay and lesbian couples during the period of time between issuance of the declaratory order and issuance of the stay has neither been raised nor decided by any court.
The legality of these marriages may turn on two key statutes. Under Wis. Stat. section 765.12(1), a county clerk is mandated to issue a marriage license when all of the prerequisites are met. The prerequisites cited by the statute include the minimum age, residency requirements, the five-day waiting period, and the necessary documentation for a marriage license. It does not specifically cite section 765.01 which references that a marriage is a civil contract between a “husband” and “wife.”
However, section 765.12(1) continues: “[I]f there is no prohibition against or legal objection to the marriage, the county clerk shall issue a marriage license.” The issue whether, at the time that Judge Crabb’s June 6 declaratory ruling was in effect, and prior to her stay, was there a “prohibition” against same-sex marriage? If not, the county clerks had no choice but to issue the marriage licenses.
The second statute that may be at issue is with respect to the legal reliance on an issued marriage certificate. Specifically, section 765.13 states that a marriage license must include a notation that the issuance of the marriage license does not “remove or dispense with any legal disability, impediment or prohibition rendering marriage between the parties illegal…” So, in effect, if the county clerk issued a marriage license on the mistaken belief of what the law allows, the issuance of the license itself does not overcome the legal impediment.
The core issue is whether there was a legal impediment in place when these 700 couples married. What effect did Judge Crabb’s declaratory ruling have on the parties and all those individuals whose constitutional rights were being denied but for the declaratory ruling? This question can be answered only by another court decision. In the meantime, the legal rights of those couples remain in limbo.
The author appreciates the assistance of attorney Linda Roberson in the preparation of this article.
Same-Sex Marriage Decision: Federalism Does Not Trump Constitutional Rights – WisBar News (June 9, 2014)
Same-Sex Marriage Decision Impacts Wisconsin, Despite Misconceptions – WisBar InsideTrack (Aug. 21, 2013)
The Gay Divorcée: When Same-Sex Marriages Dissolve in Wisconsin – Wisconsin Lawyer (July 2012)