US judge: Wisconsin same-sex marriage ban violates 'fundamental' right

'This is the way it has always been' is an insufficient justification to deny 'a right as fundamental as marriage,' Judge Barbara Crabb wrote in striking down the Wisconsin same-sex marriage ban.

Wisconsin’s ban on same-sex marriages was struck down on Friday by a federal judge who concluded that state officials had failed to offer an adequate justification for depriving gay men and lesbians of equal citizenship.

“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,’ ” US District Judge Barbara Crabb wrote in an 88-page opinion.

The judge said she did not mean to disparage state lawmakers or citizens who, she said, voted in good conscience to amend the state’s constitution to define marriage as a union of one man and one woman.

The judge found that the constitutional amendment and state provisions requiring opposite sex partners in marriage violated a fundamental right to marry without regard to sexual orientation and that it also violated equal protection guarantees in US Constitution.

Judge Crabb is the ninth federal judge within the past six months to invalidate a state constitutional amendment banning same-sex marriage. Since the US Supreme Court handed down its decision last June invalidating the federal Defense of Marriage Act, every federal judge to have ruled in a same-sex marriage case has ruled in favor of gay and lesbian couples challenging marriage bans.   

“I conclude that the Wisconsin laws prohibiting marriage between same-sex couples interfere with plaintiff’s 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,” she said.

“This case is about liberty and equality, the two cornerstones of the rights protected by the United States Constitution,” she said.

Crabb, an appointee of then-President Jimmy Carter, said that marriage plays a central role in American society.

“Marriage is tied to our sense of self, personal autonomy and public dignity,” she wrote. “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.”

Unlike several other federal judges, Crabb did not make her ruling immediately effective. So same-sex couples will not have an opportunity to rush out to a courthouse to obtain a marriage license.  

Instead, the judge is asking the lawyers in the case to help her fashion an injunction to implement her ruling and also decide on the timing of when the decision should take effect. Most federal judges have issued stays postponing their decisions until any appeals are resolved.

The Wisconsin decision stems from a lawsuit filed by lawyers with the American Civil Liberties Union on behalf of eight same-sex couples seeking an opportunity to marry or seeking state recognition of their out-of-state marriages.

“We are tremendously happy that these loving and committed couples will now be able to access the security and recognition that only marriage provides,” said Larry Dupuis, legal director of the ACLU of Wisconsin.

“These discriminatory laws are falling around the country and it is only right that Wisconsin move forward as well,” he said in a statement.  

National gay rights advocates praised the judge’s decision, noting that her opinion joins a long line of similar rulings finding such bans unconstitutional.

“Across the country, the courts agree: same-sex couples and their families need the dignity of marriage, and anti-marriage laws are indefensible,” Evan Wolfson, president of Freedom to Marry, said in a statement.

“With over 70 marriage cases now making their way through the courts, today’s decision in Wisconsin underscores that all of America is ready for the freedom to marry,” he said. “It’s time now for the Supreme Court to bring resolution nationwide.”

In other marriage news on Friday, a lawsuit was filed in North Dakota seeking to end that state’s ban on same-sex marriages.

The action, on behalf of seven same-sex couples residing in North Dakota, means that at least one lawsuit has been filed in each of the more than 30 states with existing bans on same-sex marriages.

Currently, 19 states and the District of Columbia permit same-sex marriages. Those states cover roughly 44 percent of the US population.