This article appeared in the April 2015 issue of our magazine. Subscribe to read the full issue online.
When she hears the news, Mary drops her unfinished crossword puzzle, grabs Kate, and hurries downtown. “I want it right now,” she says forcefully. The couple, sixty-five and sixty-six, have been together since 1979. Now the opportunity has finally arisen for them to get married. They do not wait for family or friends. A judge they never met before performs a short ceremony on the sidewalk in front of the local municipal building.
The date is June 6, 2014. Less than three hours earlier, a federal judge struck down Wisconsin’s constitutional ban on gay marriage. Elated, but unsure how long this new freedom would last, dozens of gay couples converge on the Dane County Clerk’s office. They say their vows with briefcases, purses, and backpacks slung over shoulders or dropped at their feet. Many wear shorts and sandals. They have bystanders serve as witnesses, only remembering to ask their names after the papers are signed.
These newlyweds, and many more, are about to embark on a dizzying journey during which the legality of their unions will change from day to day and even from place to place. In Wisconsin, as in states throughout the nation, the start-and-stop lurch toward marriage equality involves a patchwork of rules, a clash between federal and state authorities in which local officials get squeezed and respond in varying ways, and a whirlwind for the couples living through this tipping point in the history of marriage.
Wisconsin, like many other states, enshrined its animus toward same-sex marriage in its constitution. In 2006, by act of the legislature and popular vote, it passed an amendment declaring marriage to be between one man and one woman. In February 2014, the ACLU sued, arguing that the ban violated the U.S. Constitution. Federal Judge Barbara Crabb agreed and struck down the amendment on a Friday afternoon, sending couples including Mary and Kate scrambling.
“Quite simply, this case is about liberty and equality,” Crabb wrote. “The denial of marriage rights to same-sex couples necessarily is a denial of equal citizenship.” In an unusual move, Crabb did not specify how to implement her ruling. In legal terms, it was a declaratory judgment without an order or injunction.
That left Wisconsin’s seventy-two county clerks, who issue marriage licenses, facing a decision. Since the ban was ruled unconstitutional and there was no stay, should they issue licenses to gay couples immediately? Or, since there was no order and the case is technically still in progress, should they wait?
Scott McDonell, the clerk of Dane County, where Mary and Kate live, promptly announced he would issue licenses and keep his office open late that night.
I arrive just before 5 p.m. to find a small group lined up outside his door in silence. Standing next to Renee and Shari, who are about to become the first gay couple to marry in Wisconsin, I remark how calm everyone seems. Renee shows me her hand; it’s steady.
Minutes later, a jowly staffer gives clipped instructions for filling out the marriage license form: “Shari sign line 13, and Renee sign line 14.” Looking on, McDonell waits to hand them plastic roses. “It’s always nice to have some fake flowers around,” he quips. The couple stands, license in hand, and a few onlookers applaud. They kiss, then pose for pictures with wide eyes and frozen smiles.
Outside, a young man named Mike officiates the wedding in colorful plaid pants and untied canvas shoes. As he begins, “We are gathered here today,” their deer-in-the-headlights expressions melt away and Renee and Shari gaze softly and intently at one another. Renee’s face trembles when she says, “I do.” Shari beams when she says, “I so do.” Mike concludes: “In the eyes of our community, and finally in the eyes of the law, you are a married couple.”
They kiss and cry. Everyone hugs. Renee and Shari hand their smartphones to a nearby stranger and pose for pictures.
Couple after couple steps outside to get married. About a dozen black-robed judges and court commissioners have gathered, willing to officiate. They line up like kids waiting to be picked for dodgeball. Small crowds of strangers surround each wedding party, snapping pictures. I ask newlyweds what they are going to do next.
“We’re going to go get a drink and then go to a graduation.”
“Go for sushi.”
“Put the baby to sleep.” Pause. “We should go for pizza.”
“We’ll go home and watch Orange Is the New Black.”
“Maybe go back home and see our dog Sophie. We’ll tell her all about it.”
Gradually the scene looks and feels more like a party. The crowd swells. Three frosted cakes arrive, along with a violin, clarinet, French horn, and tuba. An impromptu line dance features alternate leg kicks and some stumbling. There are no hecklers, but many tears. There is elation and reflection. A man just married to his partner of twenty-one years says, “It doesn’t feel any different but it feels totally different.” A judge exclaims, “Oh my God, this is the best. This is the best.”
Elsewhere in Wisconsin, the scenes are different. Only two counties stay open on Friday night. On the following Monday, when the clerk’s office opens in Rock County at 8 a.m., there are no lines. “I don’t know if you’re going to see anything today,” the clerk tells me. Since some appellate judge could stay Crabb’s decision, “this could be over at 8:15.”
At 8:10, two young women with brown hair, Jennifer and Amanda, walk in smelling of cigarettes, each wearing baggy jeans and T-shirts with large logos. Jennifer says Amanda “went nuts” Friday when she heard about the court ruling: “She was running all over the house, screaming ‘We can get married!’ She was calling numbers. I’m just like, ‘Calm down.’ ”
This morning, they are quiet and nervous. A tall minister in a black suit leads them to a small grassy area outside. They forgot their rings at home. The clerk recommends filing their paperwork with the registrar of deeds immediately, which they do. Jennifer expresses a sense of relief: “Even if they overturn it, we just wanted to have it. Just for a minute.”
J. B. Van Hollen, then Wisconsin’s Republican attorney general, says the weddings should not be happening. Monday morning, he files an emergency appellate petition requesting a stay. Crabb announces she’ll hold a hearing that afternoon.
Van Hollen argues that he is obligated to defend the state’s marriage ban. He writes in an op-ed, “An attorney general should be the champion of the law and should reject the urge to pick and choose which laws to defend.” His office also tells clerks they should not issue licenses and publicly warns that those who do can be prosecuted. Punishment can be a $10,000 fine and nine months in jail.
Midmorning in Rock County, a court commissioner marries a Latina couple, Rosa and Karla. A newspaper reporter and I are the official witnesses. An hour later, the commissioner is unavailable for another couple, two white men named Brian and Jesse. The county clerk realizes the only way to complete the wedding before Crabb’s hearing is to do the ceremony herself in her capacity as a minister (ordained online).
“Give me just a couple of minutes to get my poop in a group,” she says, then holds the ceremony in her office.
On Tuesday, the appeals court states that since the case is ongoing, the attorney general must explain why the court should intervene, then quickly retracts that statement with no explanation.
Also on Tuesday, the state’s Vital Records Office refuses to process licenses from gay couples. The couples, having obtained a license and tied the knot in a witnessed ceremony, are married, but for the government to recognize the marriage with financial and legal benefits, the paperwork must be filed with the state.
The paperwork for gay couples from Dane County arrived at the Vital Records Office in the same package as those for straight couples. It seems that someone at the state office has paged through the documents and guessed based on names which couples were gay and which were straight. On Wednesday, Vital Records reverses course and processes licenses, with no explanation.
On Monday, sixteen of seventy-two counties issue licenses. By Tuesday, the number is forty-six. On Thursday, it is sixty. One of the late adopters is Waushara County in northcentral Wisconsin, where a gay couple has been calling the clerk all week wanting to get married. She licenses the couple on Thursday, explaining in a phone interview, “It just doesn’t seem right for me to tell someone in my county, just because you live in my county, you can’t get married, when if you lived in two-thirds of the other counties, you could. These things are supposed to be uniform.”
Bordering Waushara is Portage County, which refuses licenses to gay couples. The Portage clerk, Shirley Simonis, has worked in the office for thirty-seven years and always had detailed instructions from Vital Records, enough to fill an inch-thick binder. But Vital Records issued no new instructions this week and has not returned phone calls.
“I bet I called Department of Health Services [home of Vital Records] every single day,” Simonis tells me. “I personally called the attorney general’s office.” She even tries the Legislative Reference Bureau, the legislature’s research arm, which also cannot help. Hold-out clerks keep waiting, hoping someone will soon tell them what to do. Says Simonis, “I would like nothing more” than to issue licenses to gay couples, but “it had to go through the process.”
On Friday afternoon, a week after her original ruling, Judge Crabb holds another hearing in a red-upholstered, oak-trimmed courtroom in downtown Madison. A thin woman with white hair, Crabb washes her hands off of the week’s controversy. “Those county clerks were acting on their own when they issued marriage licenses,” she says, calling the possibility that they might be prosecuted “a very open area.”
At 5 p.m., Crabb orders county clerks to issue licenses to all regardless of gender. She also orders the state to give the same benefits to all couples. Then she stays these orders pending appeal.
“After seeing the expressions of joy on the faces of so many newly wedded couples featured in media reports, I find it difficult to impose a stay,” Crabb declares. However, her court must follow the guidance of the U.S. Supreme Court, which in 2013 stayed a similar case.
In the week between Crabb’s initial ruling and eventual stay, almost 600 gay couples were married in Wisconsin. But the judge’s timing halts at least a few weddings. Four Rock County couples have scheduled ceremonies for the coming weekend, now too late.
And government officials disagree over whether the 600 marriages that preceded the stay are valid. Each of these couples has paid their fees, said their vows, and filed their paperwork, which both county and state offices processed. They believe they are married.
But state agencies refuse to recognize the 600 marriages, denying legal marriage benefits, including parental rights, health insurance, and much more. In the eyes of state government, it is as though they never married.
The first statewide poll after these events shows 56 percent of Wisconsin voters support gay marriage, almost the inverse of the 59 percent that supported the ban on gay marriage in 2006. Nevertheless, Republican Governor Scott Walker appeals Crabb’s decision to the federal appellate court in Chicago, ahead of schedule. That court immediately fast-tracks the case and consolidates it with a similar one from Indiana.
On August 26, the line to watch oral arguments in Chicago stretches the length of a city block. The first person says he arrived at 3 a.m. The crowd jams into the high-ceilinged, intensely lit, curiously sweet-smelling courtroom. Judges Williams, Posner, and Hamilton take their leather seats behind an expansive dais and waste no time assailing Thomas Fisher, Indiana’s solicitor general.
Posner asks if adopted children are better off with married parents. Fisher stutters, and Posner asks the same question again and again, relentless in a gentle and grandfatherly tone. Flustered, Fisher sharply exhales and tightly crosses his arms.
Wisconsin’s lawyer, Assistant Attorney General Timothy Samuelson, has an even worse time. The judges’ comments to him tell the story:
“Oh come on.”
“That’s feeble.”
“That kills the argument you’re making.”
“It’s based on hate, isn’t it?”
“No reason, you have no reason.”
At one point, Hamilton exclaims “What?” then buries his head in his hands. When Samuelson, body language wilting, tries to end the ordeal by pointing out his timer is on yellow, Judge Williams replies, “It won’t save you.” Samuelson sighs: “It was worth a shot, wasn’t it?” Lawyers representing gay couples from both Indiana and Wisconsin have a much easier time.
A decision comes five working days later, lightning speed by judicial standards. All three judges find the bans on gay marriage unconstitutional, declaring the states’ arguments “totally implausible” and “impossible to take seriously.” They conclude the bans result in severe harm and virtually no benefit.
Wisconsin and other states appeal, and the U.S. Supreme Court adds gay marriage to its agenda. Wisconsin and Indiana would be discussed along with cases from Virginia, Oklahoma, and Utah. For the first time, the nation’s highest court would directly consider legalizing gay marriage.
On September 29, the Supreme Court meets in private conference and declines to reconsider the five appellate court rulings, leaving them standing with no further possibility of appeal. The effect is to legalize gay marriage.
Despite this, an Ohio appellate court upheld a gay marriage ban in November for judicial process reasons, forcing a formal decision from the Supreme Court in order to guarantee nationwide legalization. The court took the case in January and a decision is expected by June. Back in Wisconsin, facing state and federal lawsuits, Walker finally relented in October and recognized the 600 marriages.
Phyllis and Donna were the last couple to marry under the extended hours on that Friday, June 6, in Dane County. They met in 1963 over a clogged garbage chute. Now seventy-one and seventy-five, they committed to each other one afternoon fifty years ago in Phyllis’ empty hometown church. They would have liked to have children.
Phyllis happened to be outside as Renee and Shari drove by, calling out the news on their way to becoming the first gay couple to marry in Wisconsin. After a tense moment searching for Donna’s birth certificate, they got in the car. The wedding took three minutes. That night, they celebrated at home with cake and pizza.
For Phyllis, “There’s a certain calmness that we felt right after the marriage ceremony that hasn’t gone away.” For Donna, the wedding is “sort of a culmination of things. Of course, we’ve been together forever, but really it just sort of solidified everything for us. It’s a contentment we didn’t feel before. I mean, we felt a certain contentment, but this has just sort of made it more real. It’s like we’re not second class anymore.”
Matthew Kearney is a Ph.D. candidate in sociology at the University of Wisconsin-Madison. He is currently writing a book and dissertation about the Wisconsin Uprising of 2011.
Image credit: Sarah Mittermaier
