July 3, 2008

Is it a crime for a gay couple in Wisconsin to go to California to get married?

Maybe!
[A]n obscure state law ... makes it a crime for Wisconsin residents to enter into marriage in another state if the marriage would be prohibited here. The law imposes a penalty for those who enter into a marriage that's prohibited or declared void in Wisconsin of up to $10,000 and nine months in prison....

[The gay rights advocacy group Fair Wisconsin] sent an e-mail to about 10,000 supporters to see if anyone was making plans to go to California to get married. It heard back from two, and followed up to warn them about the law, said Glenn Carlson, executive director of Fair Wisconsin.

"We're telling people, especially if you live outside of Dane County, to be careful," Carlson said. After receiving the warning, one person wrote back that "I'd rather be prosecuted than persecuted."
Would anyone who supports the ban on gay marriage want this criminal statute enforced? Actually, yes:
Julaine Appling, chief executive officer of the Wisconsin Family Council, said the statutes are clear and the law should be enforced.

"If it were challenged and the courts decided to basically wink at it, and refused to enforce the law, we have a problem," she said, adding that the constitutional amendment clarified that no marriage other than between a man and woman is legal.
Oh, for crying out loud. It's one thing to have the gay marriage ban in the state and, based on that, for Wisconsin not to recognize the California-married gay couple as in fact married when they return to the state. It's quite another to criminally prosecute them!

I don't think Wisconsin prosecutors would waste public money and expose the gay marriage ban to such bad publicity, but the mere threat of prosecution is oppressive.

52 comments:

George said...

Oh, for crying out loud.

You don't hear that expression too often these days.

birdie bob said...

Let's see if I understand. In the previous post, a man should be convicted as long as the statute is unambiguous (and I agree). But in this case, a statute should not be enforced because the professor apparently feels the statute should not have been enacted in the first place. If you disagree with the statute, make your argument, convince people, and have the law repealed or changed. But arguing that the law should be repealed in a de facto manner by not being enforced seems to be a strategy to impose the will of the minority upon the majority.

Simon said...

Of course the law is "obscure." "Obscure" is one of those neutral-sounding words (cf. "technicality") used by a journalist as a convenient surrogate for "I think silly and persnickety." Why, if it's obscure, it's barely law at all! Indeed, if a law is sufficiently obscure, it might be ignored by even the Supreme Court one day!

Father Martin Fox said...

Stupid.

(I mean the guy who wants to prosecute under this statute.)

What if some minister, or really anyone, started having marriage ceremonies for same-sex couples, without any claim that it would be recognized legally by the state -- would this fellow advocate prosecuting them?

I believe the state should not recognize "gay marriage," but if two guys jump over a broomstick together and say they are married, I say you can't--you don't want to--do anything about that.

PatCA said...

"It heard back from two."

Weddings in LA County were up 10 percent in June and now are back to normal.

These two factoids illustrate that what activists care about is often quite different from what their claimed constituencies care about. The criminalizing WI speaks about will blow over, too. It's all about activists and politicians needing to gin up their bases, IMO.

Ann Althouse said...

Birdie Bob, it's a perfectly consistent view of criminal law. The state must have a statute defining a crime before it may prosecute, but not every crime should be prosecuted (there is prosecutorial discretion) and some statutes are trumped by constitutional law (as may be the case here).

Skyler said...

I don't see how this law would be unconstitutional, but I'm not a law professor. What is the convoluted logic that would make that the case?

Skyler said...

Okay, please strike "convoluted" from my last post. It was uncalled for.

J said...

I agree it would be ridiculous to prosecute, but a law professor once said "the language of the statute — not our general ideas of what is right and wrong — is crucial, and ambiguities are traditionally construed in favor of the defendant". It doesn't look like there are ambiguities here as you describe the law is all I'm sayin'.

"expose the gay marriage ban to such bad publicity"

It would expose the ban to publicity; it's not clear that publicity would be bad. Though tough to do on a college campus, don't confuse tolerance with approval.

Chip Ahoy said...

"I'd rather be prosecuted than persecuted."

Now, there's a bumper-sticker for you, and one that doesn't even make sense. Because, Idiot, you've been warned of being both. So clever a word play on 'pro' and 'pre' and 'secuted' and so dense on the meaning of the word rather.

I find it impossible to get worked up about gay marriage. All arguments for it strike me as spurious and I honestly don't see the point. I've seen gays behave spiritually and emotionally as if they were married. I've seen them adopt one another to protect their property rights. I've seen them adopt children legally. Legally, they already have what they seem to think state sanctioned marriage provides so I really don't see the point. It strikes me as all being so much drawing attention to oneself.

I got a marriage announcement from a couple in San Francisco, Actually only know one of them. I guess I was supposed to feel happy for them, but I just wasn't. Klang. All I could muster was, "you silly geese." Two grooms on a cake! -- isn't life all so fabulous? It's all about being fabulous. Go on then, be fabulous.

birdie bob said...

Professor,

I understand the outline of criminal law you present. I'm aware of prosecutorial discretion and that there are times when the prosecution of an "absurd" law is used as a strategy to highlight the reason for its repeal. I just think we have to be careful of where the "prosecutorial discretion line" is drawn to avoid transferring from one branch of government to another the duties defined in a constitution (state or federal). In this case, for example, if the statute was poorly written for any motivation of the legislators, I prefer that the remedy be legislative rather than judicial. Human nature being what it is and the desire for power of people in government, I'm always happy when governments go on recess!

Smilin' Jack said...

Just obey good laws!

EnigmatiCore said...

Sounds like a law that was enacted without gay marriage in mind (I am thinking about a couple bopping off to a state with a lower age of consent, or the like). Sounds like it was a sensible law when it was written, that now has some nasty implications.

Simple solution- get the law changed.

Blue Moon said...

birdie bob:

The rumor here in Texas is that is precisely what happened in Lawrence v. Texas (the case that went to the supreme court re: sodomy). According to the rumor, the reporting officer and Lawrence were in cahoots (love that phrase) and that this was deliberate test of the constitutionality of the Texas statute.

Elliott A said...

It seems a slippery slope when the decision to prosecute is made based on agreement or disagreement with a particular statute rather than the circumstances surrounding a particular case.. It is not different than people in Virginia with vacation homes in the Outer Banks of North Carolina registering their cars in NC to avoid paying personal property taxes. When they get caught, they get fined. Granted the fine and prison term seem extreme. But, that is for the legislature to remedy.

Dust Bunny Queen said...

Ah.... the law of unintended consequences.

A law is on the books, but because it suddenly is "politically incorrect" we don't want to enforce it. Either it is a law or it is not and should be repealed.

We can selectively enforce the law now? If we like you we won't bother but if we don't like you watch out for those obscure laws.

Beth said...

Oh, for crying out loud. It's one thing to have the gay marriage ban in the state and, based on that, for Wisconsin not to recognize the California-married gay couple as in fact married when they return to the state. It's quite another to criminally prosecute them!

Ann, were you somehow deluded about the character and motives of people behind these state bans on same-sex marriage? Think it's all just a congenial disagreement about social norms, reasonable people disagree, blah blah? No. They hate queers. That's why they take every opportunity promote the most vindictive, punitive approach possible.

Have you not read the language in these state amendments? They are designed to decimate any conceivable legal relationship, whatever the term or language, between two people of the same gender. No civil unions or domestic partnerships. Most of them attack even the common hodgepodge of wills, powers of attorney, insurance beneficiaries -- the people who are motivated enough to join groups that design and promote legislation do it because they hate queers. Why are surprised by this new twist?

Beth said...

Legally, they already have what they seem to think state sanctioned marriage

You are ill-informed, chip.

Mary said...
This comment has been removed by a blog administrator.
knoxwhirled said...

Chip,

I think there are plenty of legitimate and genuine reasons for a gay couple to get married. And I certainly think they should be allowed to do so. But I can understand the sentiment in this statement: "It strikes me as all being so much drawing attention to oneself."

I do think there are a lot of gays -- especially gay men (there, I said it) -- who are only interested in getting married because it's really the final, exciting frontier. One last way to say "We're here we're queer get used to it!" Unfortunately, treating a serious legal and spiritual matter in such a way only hurts their cause with those they might otherwise win over. And to me, it cheapens the meaning for the gay couples who are really in love and who've been waiting for this opportunity for a long time.

MadisonMan said...

mary, that's a very interesting question. I look forward to the time when the Gay Police in Wisconsin arrest such a migrating couple.

Welcome to Wisconsin, Married Gay Couple! Here's a nice fine for you, but we'll serve you free meals in Prison! That's great PR to overcome the perceived brain drain I read about all the time.

Dust Bunny Queen said...

Re: Mary's question. I think that the law only applies to people who were currently residents of the State of Wisconson. I would imagine that the State would not recognize the legality of the California marriage (as most States will not), but there would be no penalty because they were not legally under the auspices of Wisconson when they got married. Just my opinon, since I'm not a lawyer.

Bissage said...

I just want everyone here to know . . .

. . . that every time you typed out the word “gay” . . .

. . . and every time I read it . . .

. . . I changed it to the word “homosexual” . . .

. . . IN MY MIIIIIIINNNNDDDD.

*makes crazy, head-tilt, goo-goo-googly eye expression*

Dust Bunny Queen said...

Beth. The California law that was overturned by the State Supreme Court didn't invalidate or have any thing to do with the existing Domestic Partnership law that is still intact.

In Ca. anyone (same sex or hetero couples) could register as Domestic Partners and receive all the benefits that the State is able to confer on "married" people. Domestic Partnerships are also not always recognized by other States and the benefits of "marriage" that are at the Federal level were not available.....and still are not available. So basically, in California nothing has really changed except that two same sex people can call themselves married.

Their benefits and acceptance by other States or the Feds has not changed one little bit.

Simon said...

Re Mary's question, I agree with DBQ's answer - assuming the JS' description is accurate (quite an if, concededly), the statute only applies to people who are residents of Wisconsin at the time of their marriage. The evident purpose of such a provision, I'd speculate, would likely be to prevent residents from getting around state marriage law - going somewhere else and coming back a week later married - rather than to punish newcomers. A closer question would be, what if two residents eloped, married in violation of this law, and stayed away for years? Is there a statute of limitations, or can they be arrested on their return years and years later?

former law student said...

You don't need a gay couple to test the law -- first cousins can't get married in Wis unless the woman is over 55 or one party is permanently sterile. First cousin marriage is illegal in about half the states. It is legal in California.

Zachary Paul Sire said...

Ann, this post deserves a "lameness" tag!

And maybe if any couple is ever prosecuted, a "lawsuits I hope will fail" tag?

The law is completely unenforceable. How would anyone in law enforcement in Wisconsin know if two dudes went to California, got married, and then came back to their lives in Wisconsin?

If someone relevant did find out and planned to press charges, I would want the two guys or gals to go on the run and be fugitives. Think Thelma and Louise only with lesbi--err...just think Thelma and Louise.

In related news, did you hear about the two guys in Virginia who nearly fooled an entire town and got married when one of them pretended to be a woman?

Mrs. Rowena Krautchfield said...

Who's got cousins?

In California, evidently, it's legal for first cousins of the same gender to marry !!!

That means half-siblings, an aunt and nephew etc...

We are always attracted to what's familiar.

---all those hot cousins you always dreamed about.....

Zachary Paul Sire said...

all those hot cousins you always dreamed about

*uncomfortable*

Beth said...

"It strikes me as all being so much drawing attention to oneself."

knoxwhirled, you just described 99 percent of all weddings!

Beth said...

DBQ -- mebbe so, but chip didn' specify his objections to California. In most states with same-sex marriage bans, we have none of those options. My employer can't offer me the option of buying insurance for my partner b/c of the ban. We can't foster or adopt. I can't even be sure that our wills would stand up to a challenge from a family member -- maybe they will, but the point of the ban here is to put all those arrangements in doubt. It's mean-spirited, and reflects the hearts of those who designed it. That's why I'm so amazed by Ann's naive response to the stance of the Wisconsin Family Council.

Smilin' Jack said...

Isn't there a jurisdictional question here? How can an act committed in California be prosecuted in Wisconsin? I can't even be prosecuted in Wisconsin for committing murder in California--how could I be prosecuted for committing marriage?

Dust Bunny Queen said...

Beth: since Domestic Partnerships gave ALL of the legal rights that marriage has in my State (CA) the overturning of the existing law (rightly or wrongly) really did nothing other than to piss off a bunch of people who voted for the law. (I didn't vote for it) But the overturning of that law just gave more fodder to the people who are opposed to gay marriage. It was a dumb thing to do. IMHO.

However, I can see your point entirely. The ability to be secure in your financial and estate planning and to be able to add your partner to your work insurance/benefit package is something that should be changed just as a matter of fairness. But here is an example of where the State can do one thing but still has negative ramifications on the Federal level.

Health insurance is a non taxable employee benefit and a married couple doesn't have to pay taxes on the premiums paid by their employer. However, for your domestic partner, the portion of the premiums that are paid by your employer is taxable income to you on your IRS return. So you can get your partner covered, but it will cost you. Fair? No. Federal IRS regulations..yep

Palladian said...

"In related news, did you hear about the two guys in Virginia who nearly fooled an entire town and got married when one of them pretended to be a woman?"

Yes, that's the way to win over the rubes to the cause!

Mr. Astor Harrisburg said...

Smilin' Jack and Professor Althouse:

If a Wisconson couple tried to put forth one of those "quickie" divorces, say a Mexican, or Haitian Divorce.....(Dominican Republic?)

....We'd call that fraud, and you are prosecuted for that. Just as the state doesn't recognize quickie divorces, and considers them fraudulent....then I would think a marriage that the state expressly declares illegal ....would be considered just as phony !

knoxwhirled said...

"It strikes me as all being so much drawing attention to oneself."

knoxwhirled, you just described 99 percent of all weddings!


hee, yes, indeed. That was actually Chip's quote, not mine. I was just riffing off that statement to express my wide-sweeping aversion to activists.

Ann Althouse said...

It's important to note that the Wisconsin statute wasn't written to deal with same-sex marriage, but was probably about preventing marrying an underaged person and then living with her in Wisconsin. Gay adults already are entitled to live together, so the law isn't about preventing them from legitimizing their sexual relationship. It's only penalizing them for taking part in a ritual that doesn't change anything about their legal rights in Wisconsin.

veni vidi vici said...

is this some archaic pre- Loving v. Virginia era law that's now being dragged out to use against teh gays?

The idea that the number of marriages is back to normal after the spike during the month it was legalized shouldn't surprise anyone; it's not as though teh gays didn't see the legalization coming and those who wanted matrimony did it asap, and the fact that the gays are a smallish percentage of the population means their numbers shouldn't have been expected to swell the marriage rolls on a sustained basis anyway. Besides, what does that even have to do with whether their right to marry being recognized by the state isn't a good thing?

Ann Althouse said...

Mary is a banned commenter. All her comments will be deleted regardless of how appropriate they may seem.

Beth said...

knoxwhirled and palladian: I agree that eventually, some activists harm the causes for which they work. But they're a necessary evil, and there are those that have a better sense of how to communicate effectively than the guys in Virginia.

dbq: I'm assuming when you use "you" in your discussion of insurance and taxes, you mean that generally. Just want to be precise: if you use it to mean me, specifically, it's meaningless. There's absolutely no means for either me or my partner to insure the other in Louisiana.

But hey, the health club on campus gives us the family rate. If we weren't spending more than $700/month on insurance, we'd take up that offer.

dbp said...

This is a great place for prosecutors can show discression. A prosecutor might find that the law should be applied if a couple brings itself to the State's attention: Say by suing the State for recognition of their out-of-state marriage...

somefeller said...

Chip, while it depends on the jurisdiction, there are a lot of legal rights and benefits that gay or lesbian couples don't have and won't have in the absence of legally recognized civil unions or marriage. While many gay and lesbian couples have been able to protect themselves somewhat via contracts or other usage of existing legal rights (or more precisely, loopholes), such protections aren't as strong as the protections one receives via statutorily or constitutionally (I'm talking state constitutions, here though obviously that point stands for the federal Constitution, too). And that's not even going into the issue of the cost of hiring attorneys to set up such protections / take advantage of such loopholes.

Also, if you want to know why a lot of pro-choice people are concerned about a situation in which Roe v. Wade is overturned while some states still retain liberal abortion laws, laws like this one are an example. It wouldn't surprise me to see laws against traveling out of state in order to procure an abortion passed in a post-Roe world in at least some states. Such laws may not pass constitutional muster (right to travel and all), but no one wants to be the person to test that proposition.

somefeller said...

Blue Moon says: The rumor here in Texas is that is precisely what happened in Lawrence v. Texas (the case that went to the supreme court re: sodomy). According to the rumor, the reporting officer and Lawrence were in cahoots (love that phrase) and that this was deliberate test of the constitutionality of the Texas statute.

I've heard different versions of that rumor, involving various players in the case. For what it's worth, I was at an event where one of the attorneys involved in the case said that none of the different rumors were true, and it was a simple bust that had consequences that no one foresaw at the time. Granted, one might say "well, of course he would say that!", but that's what he said (in front of a friendly group that wouldn't have been offended if it was some sort of an intentional test case, I might add), again, for what it's worth.

blake said...

Selective law enforcement. Yuck. (I know Althouse says it's necessary but it strikes me as giving the state too much power.)

On the other hand, if they start enforcing this law all of a sudden 'cause of, you know, gayitude, that's pretty damn selective, too.

Beth, I think I'd rather get sick than pay $700/mo in insurance.

Beth said...

blake, that's a combined total. My partner is self-employed so her rate is very high. I'm covered at work, with a much lower premium.

Ann Althouse said...

I think the Mary who wrote here (and got a lot of responses) was not the Mary that I've banned. So here's what her post said:

Mary has left a new comment on your post "Is it a crime for a gay couple in Wisconsin to go ...":

well said, Beth.

What would be the case for a legally married gay California couple moving to Wisconsin? I assume WI would not recognize the marriage, but would that couple be under threat of this prosecution?


I regret the confusion.

Dust Bunny Queen said...

"I'm assuming when you use "you" in your discussion of insurance and taxes, you mean that generally. Just want to be precise: if you use it to mean me, specifically, it's meaningless. There's absolutely no means for either me or my partner to insure the other in Louisiana. "

Yes, Beth, that is the general you, not specific to Beth. However, should it become possible for you/Beth to put your partner on your group insurance plan as a dependent, that portion that your employer would be paying would be taxable income to you.

Blake: no you wouldn't unless you have no assets to protect. $8,400 in premiums vs. $500,000 to be in intensive care after having a heart attack. You may not be kissing your a@@ goodbye but you will be kissing your assets goodbye.

blake said...

Beth,

FWIW, the alleged "benefits" my company offers run to over $1600/mo for a couple with child(ren). (The couple need not be married.)

$19K/year for the privilege of filling out paperwork every time you need a stitch. Meh.

Actually my neighbors next-door, the wife was working solely for the insurance.

I know people will hate me for it, but I say get rid of all tax incentives for insurance. That particular interference drives up the cost astronomically.

While we're at it, get rid of the home interest deduction, since that does the same thing with RE prices.

Who else do I need to hate me today?

Dust Bunny Queen said...
This comment has been removed by the author.
Beth said...

Yes, Beth, that is the general you, not specific to Beth.

I always start from the Bethocentric universe position, so thanks for clarifying. And thanks for the financial info. I'd like to have the choice on issues such as insurance. Not having that choice, I'm completely ignorant of the tax implications.

Dust Bunny Queen said...

"I know people will hate me for it, but I say get rid of all tax incentives for insurance. That particular interference drives up the cost astronomically"

In what way does a tax break drive up insurance costs?. I would hazard a guess that it is massive use of insurance for frivolous and excessive medical services and procedures coupled with frivolous law suits that are driving up the costs of health insurance.

"Who else do I need to hate me today?"

You could talk about CFL bulbs and how I must use them. :-)

blake said...

In what way does a tax break drive up insurance costs?. I would hazard a guess that it is massive use of insurance for frivolous and excessive medical services and procedures coupled with frivolous law suits that are driving up the costs of health insurance.

I may be confused about the tax benefits of employer-subsidized health benefits, but it seems to me some people get coverage on the cheap. Where else does the "frivolous" and "excessive" usage come from? It sure ain't a free market result.

You could talk about CFL bulbs and how I must use them. :-)

Yes. Also: Mandatory abortions.