Wolf v. Walker

Decision Date06 June 2014
Docket NumberNo. 14–cv–64–bbc.,14–cv–64–bbc.
Citation986 F.Supp.2d 982
PartiesVirginia WOLF and Carol Schumacher, Kami Young and Karina Willes, Roy Badger and Garth Wangemann, Charvonne Kemp and Marie Carlson, Judith Trampf and Katharina Heyning, Salud Garcia and Pamela Kleiss, William Hurtubise and Leslie Palmer, Johannes Wallmann and Keith Borden, Plaintiffs, v. Scott WALKER, in his official capacity as Governor of Wisconsin, J.B. Van Hollen, in his official capacity as Attorney General of Wisconsin, Oskar Anderson, in his official capacity as State Registrar of Wisconsin, Joseph Czarnezki, in his official capacity as Milwaukee County Clerk, Wendy Christensen, in her official capacity as Racine County Clerk and Scott McDonell, in his official capacity as Dane County Clerk, Defendants.
CourtU.S. District Court — Western District of Wisconsin

OPINION TEXT STARTS HERE

Held Unconstitutional

W.S.A. Const. Art. 13, § 13John Anthony Knight, Roger Baldwin Foundation of ACLU, Inc., Frank M. Dickerson, III, Gretchen E. Helfrich, Hans J. Germann, Mayer Brown LLP, Chicago, IL, Laurence J. Dupuis, ACLU of Wisconsin Foundation, Inc., Milwaukee, WI, James D. Esseks, American Civil Liberties Union Foundation, New York, NY, for Plaintiffs.

Clayton P. Kawski, Thomas Charles Bellavia, Timothy Craig Samuelson, Wisconsin Department of Justice, David Gault, Madison, WI, Paul Bargren, Milwaukee County Corporation Counsel, Milwaukee, WI, John Paul Serketich, Racine, WI, for Defendants.

OPINION and ORDER

BARBARA B. CRABB, District Judge.

Plaintiffs Virginia Wolf, Carol Schumacher, Kami Young, Karina Willes, Roy Badger, Garth Wangemann, Charvonne Kemp, Marie Carlson, Judith Trampf, Katharina Heyning, Salud Garcia, Pamela Kleiss, William Hurtubise, Leslie Palmer, Johannes Wallmann and Keith Borden are eight same-sex couples residing in the state of Wisconsin who either want to get married in this state or want the state to recognize a marriage they entered into lawfully outside Wisconsin. Standing in their way is Article XIII, § 13 of the Wisconsin Constitution, which states that [o]nly 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.” In addition, 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. 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.

Two motions are before the court: (1) a motion to dismiss for failure to state a claim upon which relief may be granted filed by defendants Scott Walker, J.B. Van Hollen and Oskar Anderson, dkt. # 66; and (2) a motion for summary judgment filed by plaintiffs. Dkt. # 70. (Defendants Joseph Czarnezki, Scott McDonell and Wendy Christensen, the clerks for Milwaukee County, Dane County and Racine County, have not taken a position on either motion, so I will refer to defendants Walker, Van Hollen and Anderson simply as defendants for the remainder of the opinion.) In addition, Julaine K. Appling, Jo Egelhoff, Jaren E. Hiller, Richard Kessenich and Edmund L. Webster (all directors or officers of Wisconsin Family Action) have filed an amicus brief on behalf of defendants. Dkt. # 109. Having reviewed the parties' and amici's filings, I am granting plaintiffs' motion for summaryjudgment and denying defendants' motion to dismiss because I conclude that the Wisconsin laws prohibiting marriage between same-sex couples interfere with plaintiffs' right to marry, in violation of the due process clause, and discriminate against plaintiffs on the basis of sexual orientation, in violation of the equal protection clause.

In reaching this decision, 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,” United States v. Windsor, ––– U.S. ––––, 133 S.Ct. 2675, 2717–18, 186 L.Ed.2d 808 (2013) (Alito, J., dissenting), or “adjudg[e] those who oppose [same-sex marriage] ... enemies of the human race.” Id. at 2709 (Scalia, J., dissenting). 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.

This case is not about whether marriages between same-sex couples are consistent or inconsistent with the teachings of a particular religion, whether such marriages are moral or immoral or whether they are something that should be encouraged or discouraged. It is not even about whether the plaintiffs in this case are as capable as opposite-sex couples of maintaining a committed and loving relationship or raising a family together. Quite simply, this case is about liberty and equality, the two cornerstones of the rights protected by the United States Constitution.

Although the parties in this case disagree about many issues, they do agree about at least one thing, which is the central role that marriage plays in American society. It is a defining rite of passage and one of the most important events in the lives of millions of people, if not the most important for some. Of course, countless government benefits are tied to marriage, as are many responsibilities, but these practical concerns are only one part of the reason that marriage is exalted as a privileged civic status. Marriage is tied to our sense of self, personal autonomy and public dignity. And perhaps more than any other endeavor, we view marriage as essential to the pursuit of happiness, one of the inalienable rights in our Declaration of Independence. Linda Waite and Maggie Gallagher, Case for Marriage 2 (Broadway Books 2000) (stating that 93% of Americans rate “having a happy marriage” as one of their most important goals, an ever higher percentage than “being in good health”). For these reasons and many others, “marriage is not merely an accumulation of benefits. It is a fundamental mark of citizenship.” Andrew Sullivan, “State of the Union,” New Republic (May 8, 2000). Thus, by refusing to extend marriage to the plaintiffs in this case, defendants are not only withholding benefits such as tax credits and marital property rights, but also denying equal citizenship to plaintiffs.

It is in part because of this strong connection between marriage and equal citizenship that the marriage amendment must be scrutinized carefully to determine whether it is consistent with guarantees of the Constitution. Defendants and amici defend the marriage ban on various grounds, such as preserving tradition and wanting to proceed with caution, but if the state is going to deprive an entire class of citizens of a right as fundamental as marriage, then it must do more than say “this is the way it has always been” or we're not ready yet.” At the very least it must make a showing that the deprivation furthers a legitimate interest separate from a wish to maintain the status quo. Defendants attempt to do this by arguing that allowing same-sex couples to marry may harm children or the institution of marriage itself. Those concerns may be genuine, but they are not substantiated by defendants or by amici.

Under these circumstances, personal beliefs, anxiety about change and discomfort about an unfamiliar way of life must give way to a respect for the constitutional rights of individuals, just as those concerns had to give way for the right of Amish people to educate their children according to their own values, Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), for Jehovah's Witnesses to exercise their religion freely, West Virginia Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), and for interracial couples to marry the person they believed was irreplaceable. Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). In doing this, courts do not “endorse” marriage between same-sex couples, but merely affirm that those couples have rights to liberty and equality under the Constitution, just as heterosexual couples do.

BACKGROUND

All plaintiffs in this case are same-sex couples. Virginia Wolf and Carol Schumacher reside in Eau Claire, Wisconsin; Kami Young and Karina Willes reside in Milwaukee, Wisconsin. Both couples left Wisconsin to enter into a legal marriage in Minnesota and they wish to have their marriages recognized in Wisconsin. At the time that plaintiffs filed their summary judgment motion, plaintiffs Young and Willes were expecting a baby imminently.

Johannes Wallmann and Keith Borden reside in Madison, Wisconsin. They were married in Canada in 2007 and wish to have their marriage recognized in Wisconsin.

Roy Badger and Garth Wangemann reside in Milwaukee, Wisconsin, as do Charvonne Kemp and Marie Carlson. Judi Trampf and Katy Heyning reside in Madison, Wisconsin, as do plaintiffs Salud Garcia and Pam Kleiss. William Hurtubise and Leslie “Dean” Palmer reside in Racine, Wisconsin. Each of these five couples wishes to marry in Wisconsin. Hurtubise and Palmer want to adopt a child jointly, which they cannot do in Wisconsin while they are unmarried.

All plaintiffs meet the requirements for getting married in Wisconsin, with the exception that each wishes to marry...

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