Sunday, June 8, 2014


By Dominique Paul Noth

US District Judge Barbara Crabb
Gay marriage is all over the national news with a parade of federal court decisions overturning state efforts around the country to deny same sex couples the right to marry.  So it was understandable that all the Wisconsin headlines June 6 were about how veteran federal district judge Barbara Crabb “Overturns Wisconsin’s Gay Marriage Ban.”

Except her definitive ruling, despite the inevitable appeals, did a lot more. 

It flat eliminated a 2006 amendment to the Wisconsin Constitution that was put on that November’s ballot for political motives. Afterward in the Wisconsin Supreme Court, the wording survived legal challenges that state high court even with its conservative makeup would probably not allow today because it deliberately conflated two issues in one amendment, one clause aimed at same sex couples and the other at unmarried couples of any sexual configuration. 

Wisconsin is now officially the 12th state – by some counts the 20th -- to reject same-sex marriage state laws after the US Supreme Court agreed that DOMA was unconstitutional. But there was another side to these orchestrated attacks – an attempt to hold back the trend for people living together without the benefit of marriage but seeking the rights protection enjoyed by married couples.

Today’s march of time statistics could easily have been forecast back in 2006 as an inevitable trend in a society that has imposed financial and legal barriers to marriage, not to mention failing to respond to social changes.  The statistics indicate nearly half of young mothers have children out of wedlock though many are in sustainable couple relationships.  So domestic relationships seeking legal stature were also in jeopardy in Wisconsin from interpretations of this amendment.

It’s more than pregnancy, which 50 years ago accounted for a third of marriages according to some surveys. In Wisconsin, as I wrote back in the summer of 2006 before the vote, the amendment was not just aimed at same sex couples though that brought the media attention. It was a broad attack on choice within a general community of all ages that was choosing to live together devoid of formal city hall marriage yet deserving the basic legal protections of a married family. It actually flew in the face of what couples were deciding around the country about how to live together and raise children. 

Crabb’s ruling, though brought by gay and lesbian plaintiffs asking the judge specifically to allow same sex marriage, overturned the whole shebang – and she spelled it out that way in upholding the plaintiffs:

 “Standing in their way is Article XIII, § 13 of the Wisconsin Constitution, which states that ‘only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.’”  That second sentence infected many heterosexual relationships.

“In addition,” Crabb continued, “various provisions in the Wisconsin Statutes, primarily in chapter 765, limit marriage to a ‘husband’ and a ‘wife.’ The parties agree that both the marriage amendment and the statutory provisions prohibit plaintiffs from marrying in Wisconsin or obtaining legal recognition in Wisconsin for a marriage they entered in another state or country.”

You’ll note how she spelled out and rejected the entire amendment declaring: “The question raised by plaintiffs’ complaint is whether the marriage amendment and the relevant statutes violate what plaintiffs contend is their fundamental right to marry and their right to equal protection of the laws under the Fourteenth Amendment to the United States Constitution.” Crabb ruled that it did – the first time in memory that an amendment to the Wisconsin Constitution agreed to by a voting majority has been overturned as violation of the controlling US Constitution.

So I interpret this decision as more than a victory for same sex couples. The state has always given special preference to marriage, before and after this amendment, but now it may have to consider how it treats such nonmarried provable relationships, perhaps with various classifications. As I wrote back in 2006 opposing this ballot question, there needed to be some validation of those who for various reasons – including sensitivity of children from previous marriages – did not choose full marriage as they entered long-term domestic partnerships.

After eight years,   Crabb’s ruling seems to validate their rights as well.  Disputes over the validity of legal rights under domestic partnership agreements are likely to disappear or certainly change drastically.

In fact, all the emphasis on the same-sex issue, the center of the decision perhaps, may have hidden some broader aspects. Undertandably.  In enthusiasm after having sat on the shelf for so long with their basic rights violated, same sex couples rushed to get married in sympathetic Wisconsin counties, notably Dane and Milwaukee, even while Crabb called for a more orderly discussion by the plaintiffs on just what remedies they sought under her decision. 

All of which may keep the same-sex marriage pot boiling in the state, perhaps requiring reissuing of marriage licenses if the GOP continues to  force that issue. GOP servant J.B. Van Hollen, the attorney general who knows better than to run again for state office, is likely to seek appeal through every avenue. He has already done so with the decisive federal voter ID ruling the state has lost and is applying continuing pressure over a John Doe decision that is now in federal appeals court hands. There, despite right wing agitation and high-priced lawyers, the rights of prosecutors to investigate substance are likely to prevail.  (Choosing someone who puts citizens first and craven politics away may well be a big issue in the race for a new attorney general in November, which is why it was a major mistake this week for the lone GOP candidate for the office, Waukesha DA Brad Schimel, to insist he supports Van Hollen’s continued weak defense of bad legislative law.)

Crabb went out of her way in the ruling not to demean the voting majority back in 2006. “In reaching this decision,’ she wrote, citing varied court citations,  “I do not mean to disparage the legislators and citizens who voted in good conscience for the marriage amendment. To decide this case in favor of plaintiffs, it is not necessary, as some have suggested, to ‘cast all those who cling to traditional beliefs about the nature of marriage in the role of bigots or superstitious fools,’ … or ‘enemies of the human race.’ Rather, it is necessary to conclude only that the state may not intrude without adequate justification on certain fundamental decisions made by individuals and that, when the state does impose restrictions on these important matters, it must do so in an even-handed manner.”

It is telling that she, like many other federal district and appeals courts ruling for same-sex rights, went out of their way to quote Justice Antonin Scalia, the most outspoken conservative opponent of same-sex marriage among the US Supremes who in his writings warned that these consequences were a natural outcome of interpreting the original intent of the US Constitution.

Still it is important to recall the 2006  political times and even desperation when Bush was still president  (he lost the state vote) and the Democrats were making gains in a (believe it or not) less polarized  Wisconsin. The GOP made a move to convince the conservative religious that it was their freedom that was in jeopardy from homosexuals, a viewpoint I have never understood. Putting the issue on the ballot even in this mangled and religiously pointed form was a calculated GOP tactic hoping that turnout by fervent fundamentalists who felt under threat from nonreligious couplings would also defeat the Democratic governor, Jim Doyle, as a side-effect.  

That badly backfired.  In fact, after the dust settled, it was a noted conservative, Rep. Jim Sensenbrenner, who privately pronounced his colleagues dunces for putting this question on the ballot.  Openly, he blamed the amendment for bringing out young liberal voters in droves. Yes, the amendment passed but it so insulted voters in many districts that Democrats actually gained seats in the state legislature while retaining the governor’s mansion – and also gained strength in the US House.

The temper of the nation has changed in eight years.  Couples living together outside marriage, same sex couples living together and even raising children, are part of a highly ethical fabric committed to neighborhood development and community growth.  There is a change in attitudes, and it is affecting the innards of both parties.  Old guard Democrats are having to learn to embrace realities from a broader activist Democratic coalition.  (There used to be huge fights among Democrats about domestic rights; those are long gone.) And slowly the same change in underway in Republican ranks.  It is also happening in religious ranks, redefining the meaning of family values, social justice and even the term “conservative.”  Churches don’t have to change their beliefs to recognize there is health in diversity in a democratic society and in understanding the heritage of acceptance.

The slowness among traditionalists to respond to these changes was obvious on NBC’s “Meet the Press” when a former Milwaukee archbishop now elevated to cardinal and practiced public spokesman for the church, Timothy Dolan, revealed his own limited understanding of American values as they relate to Catholic values.  Dolan, whom I have interviewed, tried to suggest that gay marriage was making gains because his church was being “out-marketed” by opinion makers, those Hollywood types, he hinted.

But it wasn’t better public relations or better salesmanship as history demonstrates.  Over centuries religious leaders have turned over to civil authority many of the legal rights of marriage, which weakened their claim to the word “marriage” as a substitute for the term “sacrament.”

The public has picked up on that – finally.  Marriage definition has become not a religious issue but a human rights issue since hundreds of such basic rights associated with marriage are controlled by civil law not by church decree.

The surprise is that it took so long to crush this peculiar Wisconsin amendment.  Many in Wisconsin have wandered long in a desert of legal rights controlled by the state and justified as either the “voice of the people” (based on that calculated 2006 vote) or an attack on traditional religion.  I personally know many families who will not settle in Wisconsin as long as such onerous policies were part of the law.  No more, perhaps.  Yet there are still forces in the state attempting to defend it. 

About the author: Noth has been  a professional journalist since the 1960s, first as national, international and local news copy editor at The Milwaukee Journal, then as editor for its famous entertainment Green Sheet, then for almost two decades the paper’s film and drama critic before rising to senior editor.  He created its Friday Weekend section and ran Sunday TV Screen magazine and Lively Arts.  In the 1990s he was tapped by the publishers of the Milwaukee Journal Sentinel for special technology and information projects and as first online news producer before voluntarily departing to run online news seminars and write on public affairs and Internet and consumer news.

From 2002 to 2013 he operated as editor the Milwaukee Labor Press, the Midwest’s largest home-delivered labor newspaper, and helped create its portal.  He won top awards yearly until the paper stopped publishing in 2013. His investigative pieces and extensive commentaries are now published by several news outlets as well as his culture and politics outlets known as Dom's Domain.  He continues to review theater for urbanmilwaukee.

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