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ACLU of Wisconsin Challenges State Constitution and Marriage Laws

By Gabriella Khorasanee, JD on February 03, 2014 | Last updated on March 21, 2019

In the latest fall out resulting from United States v. Windsor, the ACLU of Wisconsin is challenging Wisconsin state laws that prohibit same-sex marriage. Today, the ACLU filed a lawsuit in the United States District Court for the Western District of Wisconsin challenging Wisconsin laws that prohibit same-sex marriages.

The Back Story

Two of the named plaintiffs are Roy Badger and Garth Wangemann, a Milwaukee-based couple that has been together for 37 years. Wangemann had part of his lung removed after being diagnosed with lung cancer three years ago. Complications followed surgery, and Wangemann was in a coma for almost a month. Wangemann's father wanted to override Badger's power of attorney and take Wangemann off of life support. Fortunately, his father's attempt failed and Wangemann recovered.

The Complaint

The plaintiffs, four same-sex couples, challenge Wisconsin's Constitution Article XIII § 13 and state laws pursuant to 42 U.S.C. §1983. The Wisconsin Constitution defines marriage as between and man and a woman; the Wisconsin law in question is Wis. Stat. § 765.30(1), which makes it a criminal offense, punishable with imprisonment up to nine months or a fine of $10,000, for Wisconsin residents to get married in another state, where it is prohibited in Wisconsin. Though Wisconsin has a domestic partnership statute, plaintiffs argue that they are not given "the protections and obligations accorded to married couples."

The plaintiffs argue that the Wisconsin Constitution and statutes are not rationally related to a legitimate government purpose, nor are they narrowly tailored to a compelling government interest, and that their rights to due process are violated, as well as their rights to equal protection of the laws on the basis of gender and sexual orientation.

Why Wisconsin Is Different

While it's questionable how the district court will rule on how Wisconsin defines marriage in its Constitution, Wis. Stat. § 765.30(1) is problematic because it criminalizes the act of going out of state to perform an activity that is lawful in another state. While the ACLU does not raise this issue, it could be argued that Wis. Stat. § 765.30(1) is in violation of the privileges and immunities clause as a prohibition of the right to freedom of movement and travel between states. The complaint was only filed today, so this is just the beginning.

We'll keep you posted as new developments occur.

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