Eric Tadsen
Belanger: Laws 'don't necessarily translate into a fair and inclusive society for people.'
Standing among the celebrants at the Shamrock Bar Monday night, Katie Belanger had a sobering thought.
"My fear is that people will think the work is done, and it's never done," said Belanger, the president of Fair Wisconsin.
Earlier that day news broke that the U.S. Supreme Court had declined to take up seven same-sex marriage cases. As a result, the appellate decisions that struck down marriage bans in five states were upheld, and gay couples can now legally wed in Wisconsin, Indiana, Oklahoma, Virginia and Utah.
That makes 30 states where same-sex marriage is legal, with other challenges to bans pending around the country.
In Wisconsin, the issue of marriage equality has dominated the work of lesbian, gay, bisexual and transgender activists since the early 2000s, when state legislators began working to pass a constitutional ban on gay marriage.
The group that would eventually become Fair Wisconsin, now the state's largest gay rights group, organized a grassroots effort to defeat the ban.
"It was really the marriage amendment and the campaign that put the LGBT movement on the map in our state," says Belanger.
Despite the group's energetic push, the ban passed easily in November 2006 with 59% of the statewide vote.
Belanger says that Monday's victory was huge and that people should take time to celebrate. But, she says, "As a movement we need to move beyond legal equality to making equality a lived reality for LGBT people."
Laws, she adds, "don't necessarily translate into a fair and inclusive society for people."
That point is underscored in a 2014 report (PDF) by the Equality Federation Institution, which supports gay rights groups across the country. "Marriage provides access to many protections under the law, but the passage of marriage does not dismantle the systematic oppression faced by LGBTQ people every day," writes Fran Hutchins in What's Next: Building Strong LGBTQ Organizations Beyond the Marriage Milestone.
Laws do not necessarily make life safer for oppressed groups either. Hate crimes perpetuated against LGBT people are on the rise, says Belanger. "There is a backlash going on."
Belanger says a top priority of the LGBT movement going forward is to secure protections for transgender individuals by banning discrimination based on gender identity and expression. Fair Wisconsin is already working on this issue and has scored some significant victories of late. In September, the city of Cudahy unanimously passed a fully inclusive nondiscrimination ordinance, joining Madison, Milwaukee and Appleton, which have similar protections. Dane County and Milwaukee County also have transgender-inclusive policies.
In 1982,Wisconsin was the first state to pass a law banning discrimination based on sexual orientation, but gender-identity bias is not banned.
Belanger says other issues on the LGBT agenda include addressing health disparities, alcohol and substance abuse, and intimate partner violence.
She says the goal is to achieve transformational change in Wisconsin, "where all people, regardless of their sexual orientation, regardless of their gender identity, regardless of who they are, are treated fairly, can live their lives safely and free from harm, and can thrive."
Complying with the ruling
In the immediate future, advocates also want to make sure that the state recognizes the marriages of same-sex couples.
The 7th Circuit Court of Appeals notified U.S. District Judge Barbara Crabb Tuesday that her June 6 ruling, which found Wisconsin's ban on same-sex marriage unconstitutional, was affirmed. Crabb followed up with a memo clarifying that the stay she had issued on her ruling, pending the state's appeal of the case, was lifted.
Attorney General J.B. Van Hollen said in a statement Monday that Wisconsin was obliged to comply with Crabb's decision.
"I encourage everyone to respect the court's action and to administer the law fairly and impartially," said Van Hollen. He noted that Crabb's order requires all state officials to "treat same-sex couples the same as different-sex couples in the context of processing a marriage license or determining the rights, protections, obligations or benefits of marriage."
Department of Justice lawyers had argued to the 7th Circuit Court of Appeals that Crabb's directive was too vague and therefore left state officials open to contempt charges for not following it correctly. But Judge Richard Posner of the 7th Circuit Court of Appeals addressed this argument in a Sept. 4 opinion that upheld Crabb's ruling.
"If the state's lawyers really find this command unclear, they should ask the district judge for clarification. (They should have done so already; they haven't.) Better yet, they should draw up a plan of compliance and submit it to the judge for approval."
While Van Hollen has recognized that same-sex marriage is legal in Wisconsin, the state's take on the some 550 marriages that took place in the week after Crabb's ruling -- and before her stay -- remains unclear.
Larry Dupuis, an attorney with ACLU-Wisconsin, says the Department of Justice has declined to provide information on how the state would treat these marriages with respect to taxes, spousal benefits and adoptions, among other things. As a result, his organization filed suit on Sept. 17 seeking legal recognition of these unions.
Dupuis says there is no reason this lawsuit needs to proceed given the Supreme Court action Monday.
"We're hoping the state will agree with us and stipulate with us, and that case, too, will be done and over with," says Dupuis, whose group also represented the eight plaintiffs who challenged the state's marriage ban. "It would be silly for the state to resist. Are they going to tell people to go back and get married again? That would be so mean-spirited."
Van Hollen spokeswoman Dana Brueck declined to comment on the DOJ's plans.
What is not likely to happen, at least in the near term, is the repeal of the constitutional ban on same-sex marriage and any related statutory language. The process is a long one, and Republicans, who championed the marriage ban, remain in control in both houses of the Legislature and the governor's office.
Though the ban is now unenforceable, there is a danger to leaving these laws in place, acknowledges Dupuis. "If the Supreme Court, contrary to anyone's expectation, were to take a case later on and rule that these bans are legal, then [Wisconsin's ban] could spring back into effect."
Patchwork of laws
Of course it's always tricky trying to predict what the U.S. Supreme Court will do. Its decision this week shocked many legal observers, who were all but certain that the justices had little choice but to take on the politically charged issue.
Howard Schweber, a constitutional law expert at UW-Madison, had even speculated in September that the conservative justices on the high court could not ignore the pointed challenge issued by Posner, considered one of the most respected conservative jurists in the country.
The court's decision not to bite, says Schweber, is surprising on a number of levels.
"The justices may have felt they did not want to go out on a limb or expose the court by taking a strong position, given that there is a strong trend around the country for allowing same-sex marriage without the intervention of the court."
Schweber says the assumption is that five justices, including Justice Anthony Kennedy, would vote to recognize same-sex marriage. Why those five justices did not insist the court take up the cases is an "interesting question," he adds, noting it's possible they did not want to put their more conservative colleagues on the spot.
The Supreme Court's non-action leaves a patchwork of laws across the country, a situation that will remain unless the court takes up a challenge to a same-sex marriage ban.
The unresolved nature of the issue was not lost on the couples involved in the Wisconsin lawsuit.
"It does sadden me that friends who live in other states cannot get married," said Judi Trampf at a news conference Monday.
Trampf and her partner of 25 years, Katy Heyning, were on their way to work when they heard the news from the court. They turned around, and, once home, Heyning proposed.
They're now eager to get married, though they know from hosting a commitment ceremony and reception 10 years ago that finding an available venue in Madison is not easy. Plus, it has to have room to spare.
Trampf says they'll likely have a small ceremony but a large party.
"The celebration afterward will be big."
