Timeline for Freedom to Marry in Wisconsin

Story Date: 
Oct 9, 2014

Wolf and Schumacher v. Walker Timeline

In 2006, Wisconsin Referendum 1 passed, and became Article XIII, Section 13 of the state constitution.  It banned same-sex marriage, saying “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.”

The Defense of Marriage Act (DOMA) is a federal law passed in 1996 that both created a federal definition of marriage as being between a man and a woman and expressly gave states permission to refuse to recognize marriages entered into by same-sex couples in other jurisdictions.  On June 26, 2013, the U.S. Supreme Court ruled in the ACLU case, Windsor vs. United States, that section three of the so-called "Defense of Marriage Act" (DOMA) is unconstitutional and that the federal government cannot discriminate against married lesbian and gay couples for the purposes of determining federal benefits and protections.

The American Civil Liberties Union, the ACLU of Wisconsin and the law firm of Mayer Brown filed a federal lawsuit on February 3, 2014 on behalf of four same-sex couples who wish to marry in Wisconsin or are seeking recognition for their legal out-of-state marriages.

Four additional same-sex couples were added to the case on February 28, 2014, when the ACLU filed a preliminary injunction seeking an order that the state may not enforce Wisconsin’s ban on marriage for same-sex couples.

Federal Judge Barbara Crabb gave the parties until May 19th to submit motions.  The State filed a “Motion to Dismiss.”  The ACLU, on behalf of our eight client couples filed a “Motion for Summary Judgment.” 

After considering the parties’ arguments and the law, on Friday, June 6, U.S. District Court Judge Barbara Crabb declared the state constitutional amendment, Article 13 Section 13, a violation of the equal protection of laws under the 14th Amendment to the US Constitution.  She called marriage “a defining right of passage and one of the most important events in lives of millions of people,” “essential to the pursuit of happiness” and a “fundamental mark of citizenship.”  She asked the ACLU to propose language for a permanent injunction to tell the defendants what they must do and must not do regarding the unconstitutional amendment.

On Monday, June 9, Attorneys for the ACLU filed their proposed injunctive language on the ban on same-sex marriage in Wisconsin.  The proposed language, would, among other things require county clerks to issue marriage licenses to same-sex couples and also provide for recognition of marriage of couples lawfully married in Wisconsin or other jurisdictions.  It would also provide to same-sex couples lawfully married in Wisconsin or other jurisdictions all the state law rights, protections, obligations and benefits of marriage that are provided to different-sex couples.

On Friday, June 13, Judge Crabb issued a permanent injunction to ensure that same-sex couples can marry and receive the spousal protections that have been denied them for so very long.  She also issued the decision to stay her opinion pending the State’s appeal to the Seventh Circuit.  This means that, for the time being, Wisconsin counties will have to stop issuing marriage licenses to same-sex couples. 

On Thursday, July 10, the state formally appealed to the Seventh Circuit Court of Appeals. Judges Williams, Hamilton, and Posner heard oral arguments on August 26 in the case Baskin v. Bogan (a case from Indiana that was also regarding freedom to marry). In an effort to make the process more efficient and for the purpose of oral arguments, the Court combined Wisconsin’s case with that of Baskin.

On Thursday, September 4, the Court issued a unanimous opinion, 3-0, upholding the district court’s decision by Judge Crabb: the ban on same-sex marriage is unconstitutional. Judge Posner, the conservative judge who was originally appointed by President Reagan, wrote the opinion of the Court and stated, “The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction – that same-sex couples and their children don't need marriage because same-sex couples can't produce children, intended or unintended – is so full of holes that it cannot be taken seriously.”

Five days later on Tuesday, September 9, Wisconsin Attorney General J.B. Van Hollen filed a formal petition for the United States Supreme Court to review the Seventh Circuit Court’s decision in hopes of keeping the ban in place. The attorney general, along with the governor of Wisconsin, said that the constitutional ban that was enacted was done so through a democratic process and that it was the right of the people of Wisconsin to let the ban be in place.

Wisconsin was one of five states to file a petition alongside Indiana, Oklahoma, Virginia, and Utah. The ACLU remained chief counsel throughout the process on behalf of the eight original couples named in the Wisconsin case Wolf v. Walker.

Once the petitions were filed, it was a matter of waiting for the Supreme Court to conference and determine as to whether or not they would chose to take up any or all of the cases presented to them. On Monday, September 29, the Court officially had their first conference prior to their new session commencing.

The next day, Tuesday, September 30, the Court made a rather unprecedented move: they did not make public any cases in which they agreed to hear. The wait continued and it was assumed that the Court needed to conference again in order to make a determination, or that the Court was waiting for other circuit court cases to be decided before acting on any of the cases it was presented.

However on Monday, October 6, the Court announced that it was formally denying hearing the petitions presented to it from the five states, thus letting the original circuit court decision striking down the ban go into effect. On that day, the freedom to marry was permanently reinstated in the state of Wisconsin along with the four states alongside it. On that day, the total number of states honoring the freedom to marry was brought up to 30 in addition to the District of Columbia, thus tipping the scale to a strong majority of states in which couples are granted the same rights and liberties as any other couple in the United States.

Related Key Issue: