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OPINION - The same-sex marriage lawsuit

by Chris Conley

NEWS BLOG (WSAU)  This is the lawsuit that will make gay marriage legal in Wisconsin.

The ACLU, representing four same-sex couples in Wisconsin, filed its case yesterday in Federal Court in the Western District of Wisconsin. That’s significant. Our two federal judges – William Conley and Barbara Crabb – who both lean to the left. Conley is a product of the UW law school and was appointed by President Obama. He’s already ruled against the state on the Act 10 lawsuits. Crabb is a Jimmy Carter appointee. She ruled that National Day of Prayer events violated separation of church and state, and was unanimously overturned on appeal. She also issued the controversial ruling against tax-exempt status for housing allowances that some churches give to their clergy. Crabb is a senior judge and is semi-retired with a reduced case load; it’s most likely the Judge Conley will hear the case.

The Western Wisconsin court will probably buy into the Fourteenth Amendment argument, and will rule that our constitutional ban on gay marriage violates the equal protection clause. The real issue is what happens on appeal. It won’t be pretty. The appeals court now has rulings from the U.S. Supreme Court in 2013 to guide its rulings. And those rulings will tilt towards the plaintiffs. Based on last year’s rulings, the Supreme Court would either uphold the ACLU’s victory or would decline to hear the case and let the appeals court’s ruling stand.

I believe Wisconsin’s gay marriage ban will be ruled unconstitutional, and this is the vehicle that will get gay rights supporters where they want to go.

There are three problems here – although I expect all to get steamrolled.

First, the U.S. Constitution is silent on marriage. It does say that rights not expressly given to the federal government are reserved for the states and the people. So the case is actually a clash between the 10th amendment (the co-called federalist clause) and the 14th amendment (equal protection). Which should win out in this case? The former, not the latter, since people in Wisconsin voted on the issue and decided to change the state’s constitution. I don’t think the courts will see it that way, since judicial thinking in the civil rights and social arena seems to tilt heavily towards individuals over the group.

Second, the courts will give short shrift to the process of amending our state constitution. The process spanned two session of the legislature and was approved at the ballot bot. A completely proper response to the ACLU lawsuit is to tell the plaintiffs to get the constitution changed back. If public opinion really has shifted on the issue, they could be successful.

And lastly, this lawsuit is partly the byproduct of an overreach by gay marriage opponents. As you recall, our amendment includes a ban on same sex marriage or anything similar. That’s the problem. Wisconsin’s amendment was drafted to shut out the possibility of domestic partnership registries. That air-tight closing of the door makes our state the test case. We wouldn’t be if we hadn’t rejected a reasonable compromise.

Same-sex marriage is now legal in 16 states. Two other states (Oklahoma and Utah) have had federal court rulings go against them, which are being appeals. Prepare for Wisconsin to join the list.

Chris Conley

Image: The rainbow flag waving in the wind at San Francisco's Castro District by Benson Kua from Toronto, Canada via wikicommons.com