The recent United States Supreme Court decision, Windsor v. United States, which overturned provisions of the federal Defense of Marriage Act, has been stood on its head in the wording of a complaint recently filed in federal district court, challenging Wisconsin marriage statutes.
The complaint was filed by attorney Laurence J Dupuis, on behalf of eight individuals who identify themselves as gay, and as committed to four long-term same-sex unions. Two other attorneys affiliated with the American Civil Liberties Union Foundation Lesbian Gay Bisexual Transgender Project, based in New York and Chicago, and three attorneys from the Chicago law firm of Mayer Brown LLP, are seeking admission to act as attorneys on this case in the Western District of Wisconsin.
Point 6 in the complaint asserts that the Windsor ruling "prohibits the federal government from treating state-sanctioned marriages of same-sex couples differently from marriages between a man and a woman," and therfore asserts that "Wisconsin’s marriage ban deprives the unmarried Plaintiff couples any access to these federal spousal benefits—benefits they could receive if they lived across the state line in Iowa or Minnesota."
There is not and never has been a "marriage ban" in Wisconsin law. The laws of the state have simply never contemplated that two individuals of the same sex constituted a marriage. Wisconsin, like many states, does not recognize the validity of any marriage entered into under the laws of another state, by two individuals who reside in Wisconsin, and would not have been legally married under Wisconsin law.
The complaint flies in the face of the foundation of the Supreme Court ruling in Windsor, that "By history and tradition the definition and regulation of marriage has been treated as being within the authority and realm of the separate States."
Delivering the opinion of the court, Justice Anthony Kennedy referenced that "when the Constitution was adopted the common understanding was that the domestic relations of husband and wife and parent and child were matters reserved to the States,” Ohio ex rel. Popovici v. Agler, 280 U. S. 379, 383–384.
In developing the court's ruling, Kennedy emphasized that "Consistent with this allocation of authority, the Federal Government, through our history, has deferred to state law policy decisions with respect to domestic relations." The majority opinion relied upon "The State’s power in defining the marital relation" as "of central relevance in this case quite apart from principles of federalism."
The plaintiff in Windsor was a woman whose same-sex partnership had been recognized as a marriage by the State of New York. That decision by New York was recognized by the Supreme Court as "a proper exercise of its sovereign authority within our federal system, all in the way that the Framers of the Constitution intended."
By the terms of that ruling, it would be equally a proper exercise of Wisconsin's sovereign authority not to construe a same-sex couple as constituting a marriage. In either case, federal benefits would be bound to follow state law, as is true in a variety of legal questions where there the constitution does not grant supremacy to the federal government.
The Wisconsin plaintiffs and their attorneys are now attempting to assert that because some states have amended their marriage laws to designate that two individuals of the same sex can constitute a marriage under the laws of such states, Wisconsin is depriving the plaintiffs of federal benefits by not providing in its statutes for same-sex couples to constitute a marriage.
But the Supreme Court found that it was "By creating two contradictory marriage regimes within the same State," that the federal DOMA "forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law." (Emphasis added for this article). Edith Windsor, the plaintiff, may well sympathize with the Wisconsin plaintiffs, but the Supreme Court ruling on her suit does not mandate that Wisconsin follow the lead of New York.
Nothing in the Windsor ruling prevents Wisconsin from adopting legislation redefining marriage to include the option that two individuals of the same sex might obtain a marriage license. In fact, if the elected representatives of the people of Wisconsin chose to do so, the Windsor decision requires all federal authorities to recognize such marriages. Windsor, however, does not mandate that a state do anything of the kind.