Crabb did not stay her ruling but also did not immediately issue an order blocking the enforcement of the ban, sparking a heated and hasty debate among lawyers on whether the ruling meant that couples could immediately marry in the courthouses of Wisconsin.
June 6, 2014
"U.S. District Judge Barbara Crabb in Madison Friday overturned Wisconsin's gay marriage ban..."
"... striking down an amendment to the state constitution approved overwhelmingly by voters in 2006 and prompting joyous weddings on a street outside the Dane County clerk's office."
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65 comments:
On, Wisconsin! On, Wisconsin!
She's just being an old Crabb. So do registrars issue licenses to every other same sex couple and stay the license for the others?
Yep, some pissant district court can overturn a constitutional amendment. I think the state of Wisconsin should tell this court to take a flying leap.
That judge should at least have the decency to let a higher court make the final decision.
Wow...all these judges overturning the will of the people and finding a "right" that has never existed before.
I could almost accept the activism of these judges if the decision was merely ruling in the abscence of legislation...but these judges are overturing laws passed by legislatures and Constitutional amendments passed by the people to impose their will.
It appears that this is: Another one of her anti-democracy rulings as others which have been overturned; And, another argument for an elected judiciary.
And now it's time for all the same old arguments to be rehashed.
My original prediction was for judical tyrants to impose polygamy within ten years of national SSM. I'm changing that to five.
Chris Althouse Cohen said...
"On, Wisconsin! On, Wisconsin!"
We, thy loyal sons and daughters,
Hail thee, good and great.
So we're constantly reminded that the United States is a "Democracy" but of course it's only a democracy when the people vote correctly. I used to think it was a "Republic" because that's in the Constitution, but of course the Constitution is also now what judges say it is. So I say we live in a "Judgeocracy."
The President now also regularly ignores statutes that he thinks unconstitutional, or that might imperil his signature achievement/legacy. Of course that's fine as long as he's a Democrat. If by some miracle HRC doesn't become the next President, just watch the fur fly when President X does the same.
Why don't they restrict public votes to judges and be done with it.
So happy for my state. What a perfect sunny afternoon to get married on the courthouse steps.
I wonder how much money we will throw away on a pointless appeal.
They couldn't win a popular vote. Not even close. Therefore, Wisconsin is populated overwhelmingly by bigots. The vast majority of the population of Wisconsin has been transformed overnight into Jim Crow-loving bigots.
It's time we confronted the endemic scourge of bigotry in the Deep North.
Remind me not to start a florist, baking, catering, photography, or musician business in Wisconsin, because attempts to use the threat of force to strip me of my individual freedom of association from Wisconsin's many obnoxious little protofascists will come along shortly.
What hath Antonin Scalia wrought?
The Mandarin class of lawyers spits on the wisdom and will of the people. The Mandarin class alone is fit to rule.
The families of the Mandarin class rejoice in their power to rule by diktat over their powerless subjects.
You are the oppressor, Althouse.
This is filed under "doh."
Political rule by judicial fiat. If judges insist on making social policy they should stand for election like other politicians.
Selective exclusion.
We have a democracy where you can vote for whatever you want - so long as our masters agree with the outcome.
Anything left of democracy?
How Mass 2004.
I guess it's better to be late than not cum at all at the party.
It's nice to hear your AG, from Waunakee, will appeal this. How much will that cost the taxpayer?
I guess the will of the people is entirely irrelevant when it comes time to redrafting the constitution by judicial fiat. These issues are never resolved by unelected and unaccountable judges. Instead, they leave a trail of resistance and resentment in their wake that is far more socially corrosive than leaving it to the public to make their own decisions in their own good time.
I know our hostess thinks this is the right way to go. I decline to follow this path. One would think that folks would have figured this out after the abortion penumbra debacle.
- Krumhorn
Would someone (Ann?) please explain what the judges in these cases are using as the basis for their decisions? It seems like there is a lot of legislating from the bench, but I hope that's not the case. Is the basis the SCOTUS decision in the DOMA case or some other newly emphasized constitutional right? I have no problem with the gay marriage issue - I think it's little bit of a "tempest in a tea pot", but I am concerned with judges suddenly issue edicts rather than dealing with the issue legislatively.
The people have no say.
Normal marriage rates will drop like a stone.
Harold wrote:
My original prediction was for judical tyrants to impose polygamy within ten years of national SSM. I'm changing that to five.
in this economy maybe polygamy works better. More money in the household. Better division of household chores, and more interesting sexual positions.
As long as we're spreading the love, that's all that matters.
"Normal marriage rates will drop like a stone."
Marriage rates have already dropped, like a, 35% since 1965. Maybe the gays, now that they are, uh, normalized, can help us get the rate back up.
http://www.slate.com/blogs/xx_factor/2013/06/26/most_gay_couples_aren_t_monogamous_will_straight_couples_go_monogamish.html
Most gay couples aren't in fact monogamous. So, why not gay polygamy?
"Would someone (Ann?) please explain what the judges in these cases are using as the basis for their decisions?"
Here's the opinion, with the spiffy name Virginia Wolf v. Scott Walker. Judge Crabb writes:
In reaching this decision, I do not mean to disparage the legislators and citizens who voted in good conscience for the marriage amendment. To decide this case in favor of plaintiffs, it is not necessary, as some have suggested, to “cast all those who cling to traditional beliefs about the nature of marriage in the role of bigots or superstitious fools,” United States v. Windsor, 133 S. Ct. 2675, 2717-18 (2013) (Alito, J., dissenting), or “adjudg[e] those who oppose [same-sex marriage] . . . enemies of the human race.” Id. at 2709 (Scalia, J., dissenting). Rather, it is necessary to conclude only that the state may not intrude without adequate justification on certain fundamental decisions made by individuals and that, when the state does impose restrictions on these important matters, it must do so in an even-handed manner....
In light of Windsor and the many decisions that have invalidated restrictions on same-sex marriage since Windsor, it appears that courts are moving toward a consensus that it is time to embrace full legal equality for gay and lesbian citizens. Perhaps it is no coincidence that these decisions are coming at a time when public opinion is moving quickly in the direction of support for same-sex marriage. Compare Richard A. Posner, Should There Be Homosexual Marriage? And If So, Who Should Decide? 95 Mich. L. Rev. 1578, 1585 (1997) (“Public opinion may change . . . but at present it is too firmly against same-sex marriage for the courts to act.”), with Richard A. Posner, “Homosexual Marriage—Posner,” The Becker-Posner Blog (May 13, 2012) (“[T]he only remaining basis for opposition to homosexual marriage . . . is religious. . . . But whatever the [religious objections are], the United States is not a theocracy and should hesitate to enact laws that serve religious rather than pragmatic secular aims.”).
Citing these changing public attitudes, defendants seem to suggest that this case is not necessary because a majority of Wisconsin citizens will soon favor same-sex marriage, if they do not already. Dfts.’ Br., dkt. #102, at 40 (citing article by Nate Silver predicting that 64%of Wisconsinites will favor same-sex marriage by 2020). Perhaps it is true that the Wisconsin legislature and voters would choose to repeal the marriage amendment and amend the statutory marriage laws to be inclusive of same-sex couples at some point in the future. Perhaps it is also true that, if the courts had refused to act in the 1950s and 1960s, eventually all states would have voted to end segregation and repeal anti-miscegenation laws. Regardless, a district court may not abstain from deciding a case because of a possibility that the issues raised in the case could be resolved in some other way at some other time. Colorado River Water Conservation District v. United States,424 U.S. 800, 817 (1976) (federal courts have “virtually unflagging obligation” to exercise jurisdiction in cases properly before them).
It is well-established that “the Constitution protects persons, not groups,” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995), so regardless of possible future events affecting the larger community, my task under federal law is to decide the claims presented by the plaintiffs in this case now, applying the provisions in the Fourteenth Amendment as interpreted by the Supreme Court in cases such as Loving, Romer, Lawrence and Windsor. Because my review of that law convinces me that plaintiffs are entitled to the same treatment as any heterosexual couple, I conclude that the Wisconsin laws banning marriage between same-sex couples are unconstitutional.
Shouting Thomas,
"You are the oppressor, Althouse."
STOP PLAYING THE VICTIM!!!
Althouse wrote:
n light of Windsor and the many decisions that have invalidated restrictions on same-sex marriage since Windsor, it appears that courts are moving toward a consensus that it is time to embrace full legal equality for gay and lesbian citizens. Perhaps it is no coincidence that these decisions are coming at a time when public opinion is moving quickly in the direction of support for same-sex marriage.
So, judges are basing this on "The time is right" arguments? How do they know that the time is in fact right? And you mention public opinion moving in the direction for support of same sex marriage. Except in states where the citizens right it into the constitution that they DON"T want gay marriage, these judges still overturn the decision.
(“[T]he only remaining basis for opposition to homosexual marriage . . . is religious. . . . But whatever the [religious objections are], the United States is not a theocracy and should hesitate to enact laws that serve religious rather than pragmatic secular aims.”)
Says someone who most likely agrees that gay marriage should be legal. Who says that the ONLY remaining basis for opposition to homosexual marriage is religious?
What is he reading from, Huffington Post talking points?
Sorry overwhelming majority of Wisconsinites, your vote doesn't count. Can't wait for the liberals to cheer when a conservative judge decides to rule that abortion is not a right, and henceforth illegal. Or better yet, that women and minorities should not be granted suffrage.
Ann Althouse,
"Here's the opinion, with the spiffy name Virginia Wolf v. Scott Walker."
Scott Walker, eh? So now he's got that attached to him, too.
You live there, is it an anchor or not?
From where I sit, seeing the Right doesn't understand the cultural whirlpool they're in, the U.S.S. Walker is already taking on water,...
"Because my review of that law convinces me that plaintiffs are entitled to the same treatment as any heterosexual couple, I conclude that the Wisconsin laws banning marriage between same-sex couples are unconstitutional."
Not even all heterosexual couples are entitled to the same treatment. Has Crabb not heard of underage marriages or incestual marriages?
And gay couples would be entitled to the same treatment as heterosexual couples. No one would be able to marry a person of the same sex. Just as no one would be able to marry their sister.
So, lets use this logic if a brother and sister sue to have their marriage legalized. Wouldn't plaintiffs be entitled to the same treatment as any heterosexual and gay couple according to this logic, since they are a couple?
Meade,
"Normal marriage rates will drop like a stone."
I'll drop The Stones if you rate their marriages as normal,...
From where I sit, seeing the Right doesn't understand the cultural whirlpool they're in, the U.S.S. Walker is already taking on water,.
Crack, Walker is defending the law of his state, which was overturned by a judge. Shouldn't governors uphold the laws of their states?
jr565,
"So, lets use this logic if a brother and sister sue to have their marriage legalized,…"
Dude, absolutely no one is listening to you,...
These judges have kids and grandkids, that is the real problem. Total family pressure.
Thankfully Thomas has no children and Scalias' are all major catholics.
The rest of them don't want to be written about in the history books like William Buckley was about civil rights.
the issue is settled oldies....bitch and moan about something else...which will cum around the corner in 5.
think about it this way, most of you, because you are old, are going to be dead pretty soon.
do you want to hate the gay during your last remaining breaths or maybe just pick up a golf club?
Yep. First abortion. Now this. Only this time its one state at a time. Not all states. Just those whose citizens don't vote correctly. So for this for this for things like abortion and this we legislate from the bench.
Fortunately, we don't yet have Marius and Sulla campaigning up and down the land and executing their opponents. But we have indeed entered the late Roman Republic. We will rever the forms and pretend they still have potency. Althouse will teach the law as if it had some meaning beyond today's latest edict. But make no mistake it is all just a shadow play.
Remember, the Roman senate survived in form for hundreds of years after it became irrelevant before anyone bothered to actually abolish it.
Have another drink Titus.
Nobody hates you.
You're just boring.
Titus@9:40 wrote -
"do you want to hate the gay during your last remaining breaths"
Not being in favor of SSM does not come close to equaling hate. I am so tired of anything less than celebratory adulation being hate. It is so old, tiresome, and busted.
You are a repugnant troll, but you knew that already.
----Maybe the gays, now that they are, uh, normalized, can help us get the rate back up.
MARRIAGE IS SLOWLY DYING IN SCANDINAVIA. A majority of children in Sweden and Norway are born out of wedlock. Sixty percent of first-born children in Denmark have unmarried parents. Not coincidentally, these countries have had something close to full gay marriage for a decade or more. Same-sex marriage has locked in and reinforced an existing Scandinavian trend toward the separation of marriage and parenthood. The Nordic family pattern--including gay marriage--is spreading across Europe. And by looking closely at it we can answer the key empirical question underlying the gay marriage debate. Will same-sex marriage undermine the institution of marriage? It already has.
More precisely, it has further undermined the institution. The separation of marriage from parenthood was increasing; gay marriage has widened the separation. Out-of-wedlock birthrates were rising; gay marriage has added to the factors pushing those rates higher. Instead of encouraging a society-wide return to marriage, Scandinavian gay marriage has driven home the message that marriage itself is outdated, and that virtually any family form, including out-of-wedlock parenthood, is acceptable.
http://www.weeklystandard.com/Content/Public/Articles/000/000/003/660zypwj.asp
http://www.dailymail.co.uk/news/article-2356774/Australian-woman-Jodi-Rose-marries-bridge-France--gets-mayors-blessing.html
http://www.huffingtonpost.com/2012/05/25/nadine-schweigert-woman-marries-herself_n_1546024.html
http://www.theguardian.com/commentisfree/2012/aug/30/three-people-get-married-thruple
Barbara Crabb is the same judge who couldn't tell the difference between a lottery and blackjack, so I expected a poorly reas
oned decision.
We are truly in a post-constitutional age, where judges and the President rule by fiat and the elected representatives have no voice. Talk about throwing the baby out with the bath water! The thing about lefties is that they fail to ever see the other edge of the two edged sword. These powers, once unleashed from law, can be used in ways you might find objectionable. The law protects everybody until it doesn't.
These are the times that try men's souls.
Today, we see celebration of judges overturning the will of the people.
But this will come back, hard and fast, to haunt us. Soon judges will be overturning laws that won't bring Althouse, Meade, and their fellows, such joy.
And then their happiness will turn to ashes in their mouth.
This won't last long. When corruption sets in, it starts slow but picks up speed quickly.
The fortunate ones will be those who, through trials and tribulations, have their eyes opened. The not so fortunate? Those who find someone, or something, other than themselves to blame.
Crack wrote:
Dude, absolutely no one is listening to you,...
pot meet kettle. Though I suppose I should be thankful thst you didn't swing the conversation around to whitey again.
If you want to argue the merits though, someone asked althouse the reasoning behind the judges decision. And she quoted what the judge said. Using the jidge's own logic I don't see why there should be a restriction on incestual marriages.
Judge Crabb: "In light of Windsor and the many decisions that have invalidated restrictions on same-sex marriage since Windsor, it appears that courts are moving toward a consensus that it is time to embrace full legal equality for gay and lesbian citizens. Perhaps it is no coincidence that these decisions are coming at a time when public opinion is moving quickly in the direction of support for same-sex marriage."
That is an offense to the law. We now have judges legislating based on "consensus"? Apart from reading their copies of the New York Times, the New Yorker and New York magazine, where do judicial officers derive their power to determine a political consensus? Does a judicially-determined "consensus" trump the real, live consensus as reflected in popularly-enacted state laws and state constitutional provisions which came out of very strong electoral majorities?
I actually like the idea that Judge Crabb's judicial arrogance was stated so clearly.
We need to stop all this voting non-sense and just let the bureaucrats and judges get on with ruling us.
Basil at 11.07 for the win. Anyone that can afford a good attorney can play this game.
Ann;
Thanks. It does seem that the judge is legislating from the bench, although the 14th amendment argument seems reasonably sound. However it does seem a bit dangerous to be taking these matters out of the hands of the people before they have had an opportunity to revisit their vote of several years ago. I know that this will not be the first time that the courts have gotten ahead of - or fallen behind - the feelings of the populous.
I know that this will not be the first time that the courts have gotten ahead of - or fallen behind - the feelings of the populous
How'd that work out for them on the issue of abortion?
It's not about rights. It's about govt benefits. Sharing SS benefits, inheritance tax exemptions.
Those benefits were written into the law, because women raised families, ran households, and did not have a lifetime to earn SS benefits. Ditto for amassing wealth. No opportunity.
Homosexuals are not limited by the burden of sustaining the species through procreation.
That society has evolved since those laws were written, are only the purview of the people through their elected representatives, to adjust. Not unelected oracles that are not subject to being held accountable to the people.
See? not a single religious tenet.
Crack
You think this litigation was against Scott Walker personally?
Hilarious.
Did she go all the way, or like Maggie Marshall, here in Massachusetts, just take care of those she knows?
While I say give people space while we can, I wonder why we are not talking about apologies to the Mormons for Reynolds v United States?
Regards — Cliff
"In light of Windsor and the many decisions that have invalidated unrestricted abortions since Windsor, it appears that courts are moving toward a consensus that it is time to embrace full legal equality for unborn children. Perhaps it is no coincidence that these decisions are coming at a time when public opinion is moving quickly in the direction of opposition to abortion."
I'm sure our host would be celebrating something like that as well.
Actually, I can't believe that actually passes for judicial "thought".
Chuck wrote:
That is an offense to the law. We now have judges legislating based on "consensus"? Apart from reading their copies of the New York Times, the New Yorker and New York magazine, where do judicial officers derive their power to determine a political consensus? Does a judicially-determined "consensus" trump the real, live consensus as reflected in popularly-enacted state laws and state constitutional provisions which came out of very strong electoral majorities?
Good piont. Where is this consensus if the state just passed the law stating the opposite. I would think THAT would be the consensus.
Ah, but she read a poll somehwere and has her finger on the pulse of where opinion is going. And lo and behold it matches her own opinion.
Where can I get my hands on these magical items that show where the true evolution of traditions and institutions should be.Are they like the palantirs in Lord of The Rings?
OR is this simply the judge's opinion about what the law should be not based on any reading of the law, but rather her opinion about what the law should be.
Crabb's "the time is right" theory of constitutional interpretation: a "marriage" of the "evolving constitution" theory with the pragmatic theory of "if it works, it's in the constitution."
Crabb's "the time is right" theory of constitutional interpretation: a "marriage" of the "evolving constitution" theory with the pragmatic theory of "if it works, it's in the constitution."
Awesome. Now let's immediately strip all benefits between "partners" in the UW and State system.
And by immediate, TODAY.
Democracy is a tool of the powerful. Rule by decree is especially formidable.
Someone found the first draft of the opening sentence of Judge Crabb's opinion in the dumpster outside the federal building. Here's the original version, which apparently went through extensive editing before being published: "In reaching this decision, I do not mean to disparage the legislators and citizens who voted in good conscience for the marriage amendment. But through exercise of judicial notice I have determined that so many of my unwashed subjects actually voted in bad conscience that I, their intellectual and moral superior, feel compelled to relieve them of their foolish faith in the democratic process. While the gay rights movement has made amazing progress in the political sphere and likely would have some day convinced the hoi polloi to see it their way, I have grown impatient and weary of the constant jibber-jabber among the ignorant bigots who unfortunately inhabit my realm. Accordingly, it is my duty, as a specially gifted and appointed-for-life being, one more enlightened than the subjects who collectively, but wrong-headedly, persist in their naive belief in the democratic process (how quaint!), to proclaim the truth so that the common folk need not trouble themselves with trying to persuade others of the propriety of their misguided and half-assed opinions. After all, their time is better spent toiling in whatever pathetic taxable pursuits they can find for themselves to enable them to pay my salary. . . ." The unfortunate law clerk who suggested the deletions is now working at a Wal-Mart, but through a series a data-handling mishaps, the edited version ended up being published.
The people, through the amendment process, can add to, take away from, and/or alter the terms of our Constitution.
But they cannot enact a new provision that violates the precepts of existing provisions unless they change those existing provisions.
Thus, the people can validly pass an amendment that changes the state's involvement in marriage, unless that amendment would violate equal protection provisions already in place.
In that case, the people STILL have the ultimate power to make the change, but they must also repeal our constitutional requirement for equal protection of the law simultaneously.
Not having done so - and never having any expectation that the votes would be there for such a change - the voted-in amendment internally conflicts with still-valid Constitutional provisions, and so fails.
What do you think would happen if we passed an amendment authorizing slavery of Italians? It would fail because other parts of the Constitution - still valid after the amendment - prohibit it.
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