Trampf (left) and Heyning will celebrate their 25th anniversary this year.
It wasn't long ago that local activists saw little hope in challenging Wisconsin's 8-year-old ban on same-sex marriage. Forcing a redo vote on a constitutional amendment is a multi-year process that would have required the unlikely cooperation of the Republican-controlled Legislature and governor's office. And a court challenge didn't look any more promising. Then came the United States Supreme Court decision in United States v. Windsor, which invalidated the Defense of Marriage Act.
Though the 2013 ruling stopped short of legalizing same-sex marriage, the language in the decision has proven key to a string of lawsuits filed around the country in recent months. That includes the one brought this week by the American Civil Liberties Union Foundation seeking to overturn Wisconsin's constitutional ban on same-sex marriage.
Larry Dupuis, legal director of ACLU of Wisconsin Foundation, says the Windsor case is pivotal because it was ultimately not decided on the issue of state rights but "on the equal dignity of persons." The ruling is also significant in its grounding in the due process and equal protection provisions of the 14th Amendment to the United States Constitution, Dupuis adds.
The complaint filed Monday in the U.S. District Court for the Western District of Wisconsin charges that Wisconsin's 2006 same-sex marriage ban violates the Constitution's due process clause and equal protection clause by preventing same-sex couples from marrying in the state. It also takes aim at an obscure Wisconsin law dubbed the "marriage evasion statute," which makes it a criminal offense for a resident to leave the state to enter a marriage that is prohibited in Wisconsin.
According to the Wisconsin Legislative Reference Bureau, Statute 765.30(1) dates to 1961, though a related statute, "Marriage Abroad to Circumvent the Laws," goes back to 1915.
The ACLU complaint asks the court to prohibit the defendants in the lawsuit -- who include Gov. Scott Walker, Attorney General J.B. Van Hollen, Dane County Clerk Scott McDonell and other public officials -- from enforcing the state's marriage ban.
"We expect that this lawsuit will bring the freedom to marry to all Wisconsinites," Dupuis said Monday at a news conference. He added that the lawsuit would "demonstrate that Wisconsin's refusal to allow marriages, or to recognize out-of-state marriages of gay and lesbian couples, violates the fundamental right to marry as well as the equal protection guarantee of the 14th Amendment of the U.S. Constitution."
Four couples are plaintiffs in the suit. "Most have been together for decades, and some are raising or have raised children," Dupuis said. Three of the couples are seeking the ability to marry in the state, including Judi Trampf and Katy Heyning, who live in Madison.
Trampf said that she and Heyning met 30 years ago while working at a summer camp. This year they will celebrate their 25th anniversary as a couple.
"Through thick and thin we have been there for each other," Heyning said. "We have turned to each other for love, support, understanding and care." But, she added, because of the state's ban on gay marriage, "We and thousands of other loving couples are being denied the ability to marry."
Trampf and Heyning have mulled going out of state where they could legally marry, but have not done so because of Wisconsin's marriage evasion law.
"I don't want to take the risk of being prosecuted," Trampf said. "My partner and I really are law-abiding citizens."
Supreme Court bound
In 2006, 59% of voters in a statewide referendum approved amending the Wisconsin Constitution to ban same-sex marriage and civil unions. Critics said it was the first time in state history discrimination was enshrined in the Constitution.
Wisconsin Family Action, a socially conservative organization that opposes homosexuality and abortion, led the campaign for the amendment. Julaine Appling, president of the group, did not respond to a request for comment but indicated to other media she believed the amendment was on solid legal ground.
Attorney General J.B. Van Hollen echoed that sentiment in a statement. "I believe the amendment is constitutional, and I will vigorously defend it."
Tom Evenson, spokesman for Gov. Walker, did not respond to a request for comment.
Federal judges have recently struck down same-sex marriage bans in Utah and Oklahoma, and there is a pending lawsuit in Virginia with the same aim. The lawsuit in Virginia also charges that the ban violates the Constitution's equal protection and due process clauses.
In Virginia, the new attorney general, a Democrat, has refused to continue to defend the state's marriage ban.
John Knight, staff attorney with the ACLU's Lesbian, Gay, Bisexual & Transgender Project, said at Monday's news conference that public support for gay marriage is growing: "Nationally, we've seen an outpouring of support for treating loving, committed same-sex couples fairly."
Knight said that the ACLU is now litigating six federal challenges to state marriage bans and that he expects at least one case will "end up in the U.S. Supreme Court." Dupuis said that altogether there are 48 state and federal lawsuits challenging marriage bans in 20 states.
Fair Wisconsin, the statewide advocacy group for gay rights, expressed support for the ACLU Wisconsin lawsuit. "We certainly support the relief requested in the ACLU's case, as well as all efforts to make marriage equality a reality," said president and CEO Katie Belanger. "We look forward to monitoring the Wisconsin case and the more than 40 cases across the country as they continue to move forward."
