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OPINION - Gay marriage: overreach on both sides

by Chris Conley

NEWS BLOG (WSAU) You're going to hear a lot about one person - Federal Judge Barbara Crabb - overruling the votes of 1.2-million Wisconsinites on the issue of same sex marriage. I find those arguments old and tied. Exactly the same case can be made in 16 other states were similar laws have been overturned. The federal judiciary have no qualms substituting their judgment for yours. The proper suggestion -- that if public opinion has really changed on the issue of gay marriage -- why not go through the process of amending the state Constitution again? The unspoken answer is that the politics doesn't work, and the measure would not be approved.

But I have two special criticisms on this issue; one for the political-right and one for the left.

First, for my conservative friends: you over-reached on the wording of the Constitutional amendment in 2006, and that was its undoing just 8 years later. The problem is that the Wisconsin same-sex amendment also prohibited " a legal status identical or substantially similar to that of marriage ", and that specifically is a Fourth Amendment equal protection problem. We would not be where we are today if the state defined marriage as between a man and a woman, but said gay couples can still register their relationships for all the legal benefits that married couples have. Under the law, gays and straights would be the same. That should have given the state a much stronger argument in court.

As for the left, the situation in Dane and Milwaukee counties - where county clerks began issuing marriage licenses within minutes of Judge Crabb's ruling - is unconscionable. Of course an emergency appeal will be filed (it already has been), and of course it's likely that an appeals court will stop these instant marriages from happening until the case is fully played out. No one's marital status should be in legal limbo. Either you are or you aren't. And a gay couple that rushes to the altar moments after a contentious court ruling are going to feel like ping-pong balls before this matter is settled. A stay gets filed - so their marriage isn't legal. Perhaps they win at the appeals level; their marriage is "on" again. But that ruling gets stayed again until the U.S. Supreme Court decides if it will take the case. The high court may or may not allow marriages to happen while their ruling is pending. And then, perhaps two years from now, we'll have finality on the issue.

So what's the private employer of a same-sex couple to do when they demand benefits while their marital status is in limbo? Do they need their own legal expert to sort this out? What if their legal expert picks incorrectly? Or should the company spend tens-of-thousands of dollars on an expensive HR policy change? These are all unfair consequences of county clerks issuing flimsy marriage licenses.

Chris Conley
6.10.14

Image: A same-sex wedding topper REUTERS via wsau.com