Crabb: 'Any Wisconsin statutory provisions, including those in Wisconsin Statutes chapter 765, that limit marriages to a 'husband' and a 'wife' are unconstitutional as applied to same-sex couples.'
U.S. District Barbara Crabb has ruled Wisconsin's ban on gay marriage unconstitutional.
"The marriage amendment and related statutes cannot survive constitutional review," Crabb wrote in her 88-page decision, issued Friday.
The ruling has been anticipated for weeks, with the city clerks in Madison and Milwaukee preparing for a rush of couples who wish to marry.
Local attorney Tamara Packard says that time has come. "I think there is a window open for people to go get married," she says.
Attorney General J.B. Van Hollen had asked Crabb to issue an immediate stay on her decision should she overturn the ban. But Crabb did not do that, saying instead that she would address that motion after parties had an opportunity to file briefs on the proposed injunction. They have until June 16 to do so.
The ban, Crabb wrote, "violates plaintiffs' fundamental right to marry and their right to equal protection of laws under the Fourteenth Amendment to the Constitution. Any Wisconsin statutory provisions, including those in Wisconsin Statutes chapter 765, that limit marriages to a 'husband' and a 'wife' are unconstitutional as applied to same-sex couples."
Crabb referred to the U.S. Supreme Court ruling in United States v. Windsor, in which the court struck down a key part of the Defense of Marriage Act and granted federal recognition to same-sex couples. "As noted by Justice [Antonin] Scalia in his dissent, it is difficult to cabin the Court's reasoning to DOMA only," she wrote.
Since the DOMA ruling federal judges have overturned same-sex marriage bans in Oregon, Pennsylvania, Utah, Oklahoma, Virginia, Tennessee, Michigan and Idaho.
The American Civil Liberties Union filed a federal lawsuit in February seeking to overturn Wisconsin's ban on same-sex marriage and civil unions. The lawsuit also sought to strike down an obscure state law that makes it a crime for couples in Wisconsin to marry in another state if their union is not legal here.
Four couples are plaintiffs in the lawsuit.
"While today's decision is a setback, we will continue to defend the constitutionality of our traditional marriage laws and the constitutional amendment, which was overwhelmingly approved by voters," Van Hollen said in a statement. "I will appeal."
