Omar Bennett
Wisconsin's constitution banned same-sex marriage in 2006, but this was challenged in court several times over the following years. In 2014, the US Supreme Court refused to hear an appeal of a lower court's ruling that Wisconsin's ban on same-sex marriage was unconstitutional, effectively legalizing same-sex marriage in the state. However, Wisconsin law still contains language referring to husband and wife, reflecting ongoing risks to LGBTQ+ rights in the state. While same-sex marriage is now legal in Wisconsin, some same-sex couples continue to face legal challenges and uncertainty regarding their rights, particularly in divorce and parental rights cases.
| Characteristics | Values |
|---|---|
| Date of ban on same-sex marriage | November 2006 |
| Date ban was lifted | October 6, 2014 |
| Number of same-sex couples married in the week after the ban was lifted | 500-550 |
| Status of marriages that occurred during the week after the ban was lifted | Uncertain |
| Status of Wisconsin's ban on same-sex marriage | Unconstitutional |
| Wisconsin's recognition of same-sex marriages from other states | Yes |
| Wisconsin's recognition of same-sex marriages from other countries | Unclear |
| Wisconsin's recognition of same-sex civil unions | Yes |
| Wisconsin's recognition of same-sex domestic partnerships | Yes, from August 2009 to April 2018 |
| Wisconsin's recognition of same-sex divorce | Yes |
| Wisconsin's recognition of same-sex adoption | Unclear |
| Wisconsin's recognition of same-sex couples' parental rights | Unclear |
| Wisconsin's recognition of same-sex couples' spousal rights | Yes |
| Wisconsin's recognition of same-sex couples' rights to alimony | Unclear |
| Wisconsin's recognition of same-sex couples' rights to child custody | Unclear |
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What You'll Learn
Wisconsin's constitution and the ban on same-sex marriage
Wisconsin's constitution did ban same-sex marriage, but it no longer does.
Article XIII, section 13 of the Wisconsin Constitution, previously stated that “only a marriage between one man and one woman shall be valid or recognized as a marriage in this state”. This amendment was passed by Wisconsin voters in November 2006, with 59% in favour.
However, in 2014, a lawsuit was filed challenging Wisconsin's ban on same-sex marriage. The case, known as Wolf v. Walker, was brought by the ACLU and culminated in the Court of Appeals' ruling that Wisconsin's ban on same-sex marriage was unconstitutional and violated the US Constitution. The US Supreme Court refused to hear the State of Wisconsin's appeal, and as a result, same-sex couples gained the freedom to marry in Wisconsin.
Following the ruling, same-sex couples began marrying in Wisconsin, and the state recognised the marriages of same-sex couples who were lawfully married in other states. The state was also required to treat those marriages equally to different-sex marriages, providing access to spousal protections, benefits, and obligations.
Despite this progress, some issues remain. Wisconsin is one of two states that refer to a "husband" in the statutory definition of a parent, and attempts to change this have stalled. Same-sex parents continue to face challenges and uncertainties regarding their parental rights, and there are concerns about the legal limbo of same-sex marriages that occurred during the brief period when the ban was lifted before being temporarily "put on hold" by a judge.
While Wisconsin has taken steps to legalise same-sex marriage and protect the rights of LGBTQ+ individuals, there is still work to be done to ensure full equality and protection under the law.
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The lawsuit challenging the ban
The lawsuit challenging Wisconsin's ban on same-sex marriage was Wolf v. Walker, a case brought by the ACLU in February 2014. The plaintiffs in Wolf v. Walker were eight same-sex couples who lived in Wisconsin. Some of these couples had been legally married in other states and wanted Wisconsin to recognize their marriages, while others wanted to marry in Wisconsin but were prevented from doing so by the state's marriage amendment.
On June 6, 2014, Federal Judge Barbara Crabb ruled that Wisconsin's Constitutional Amendment prohibiting same-sex marriage was unconstitutional under the US Constitution. Immediately following Judge Crabb's decision, many same-sex couples in some Wisconsin counties obtained marriage licenses and married. However, one week after her initial decision, Judge Crabb stayed the decision pending appeals.
On October 6, 2014, the U.S. Supreme Court refused to hear an appeal of an appellate court ruling in Wolf v. Walker, which found Wisconsin's ban on same-sex marriage unconstitutional. The appellate court issued its order prohibiting the enforcement of the state's ban on same-sex marriage the next day, and Wisconsin counties began issuing marriage licenses to same-sex couples immediately.
While same-sex marriage is now legal in Wisconsin, there are still some legal ambiguities surrounding same-sex divorce and parental rights for same-sex couples. For example, it is unclear how courts will handle custody for children of same-sex couples, and there may be questions about the validity of marriages that took place during the week that the ban was lifted but before it was officially struck down.
In December 2023, Senators Tim Carpenter and Mark Spreitzer announced their intention to file a constitutional amendment to repeal the ban and make the appropriate changes in statutory law.
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The Supreme Court's refusal to hear the state's appeal
On October 6, 2014, the United States Supreme Court refused to hear the State of Wisconsin's appeal of the lower federal court decisions in Wolf v. Walker, a case brought by the ACLU in February. The Court of Appeals ruled that Wisconsin's ban on marriage for same-sex couples violated the U.S. Constitution. As a result, same-sex couples gained the right to marry in Wisconsin, and the state was required to recognise the marriages of same-sex couples who were lawfully married in other states.
The following day, Wisconsin counties began issuing marriage licenses to same-sex couples, and Attorney General Van Hollen stated that the Supreme Court had "declined the opportunity to examine" the decision, and that it was now the state's "obligation to comply". Governor Walker instructed county clerks to comply and issue marriage licenses to same-sex couples, and over 550 same-sex couples wed during the week that the same-sex marriage ban was lifted.
Despite this progress, Wisconsin law still refers to "husband and wife", reflecting how LGBTQ+ rights remain at risk in the state. Wisconsin is one of two states that refer to a "husband" in the statutory definition of a parent, and attempts to change this have stalled in the Republican-controlled Legislature. Furthermore, Wisconsin is one of the states where the constitutional ban on same-sex marriage could take effect again if a future U.S. Supreme Court overturns Obergefell v. Hodges, the case that legalised same-sex marriage nationwide.
In conclusion, while the Supreme Court's refusal to hear Wisconsin's appeal in Wolf v. Walker was a significant step forward for same-sex marriage rights in the state, there are still concerns about the ongoing legal status of these marriages and the protection of LGBTQ+ rights in Wisconsin.
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The impact on same-sex couples in Wisconsin
Same-sex marriage has been legally recognized in Wisconsin since October 6, 2014, following the resolution of a lawsuit challenging the state's ban. The U.S. Supreme Court refused to hear an appeal of the appellate court ruling in Wolf v. Walker, which found Wisconsin's ban on same-sex marriage unconstitutional. As a result, Wisconsin counties began issuing marriage licenses to same-sex couples, and the state must now recognize same-sex marriages performed in other states as well.
The legalization of same-sex marriage in Wisconsin has had a significant impact on the lives of LGBTQ+ individuals and couples in the state. Same-sex couples in Wisconsin now have the freedom to marry and have their marriages recognized by the state, affording them the same rights and protections as different-sex couples. This includes the right to spousal benefits, such as health insurance and joint filing of taxes, and the ability to adopt children together.
However, despite the legalization of same-sex marriage, some issues remain for LGBTQ+ couples in Wisconsin. One issue is the determination of the length of the marriage for spousal maintenance or alimony purposes, as maintenance is linked to the length of the marriage. It is unclear whether the courts will use the date of the couple's actual marriage or the date Wisconsin recognized the legality of their marriage to calculate maintenance.
Another concern is parental rights for same-sex couples. Despite the Obergefell v. Hodges decision, which legalized same-sex marriage nationwide, some same-sex parents in Wisconsin have had to return to court to secure their parental rights. This indicates that the legal journey for LGBTQ+ individuals and couples in Wisconsin is ongoing, and there may still be biases and challenges when it comes to their rights and recognition under the law.
Furthermore, the laws regarding divorce for same-sex couples in Wisconsin are still evolving. While same-sex couples are entitled to the same legal processes governing traditional marriages, including divorce, the lengthy and disjointed legal acceptance of same-sex marriage has created some ambiguities. These uncertainties can cause confusion and concern for couples seeking divorce, and it remains to be seen how the courts will handle issues such as child custody in these cases.
Overall, while the legalization of same-sex marriage in Wisconsin has been a positive step forward for LGBTQ+ rights in the state, there are still areas that need to be addressed to ensure full equality and protection for same-sex couples. The impact of this change has been far-reaching, and it continues to shape the lives of LGBTQ+ individuals and their families in Wisconsin.
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The ongoing legal challenges and uncertainties
Same-sex marriage has been legally recognised in Wisconsin since October 6, 2014, following the resolution of a lawsuit challenging the state's ban. The US Supreme Court refused to hear an appeal of the appellate court ruling in Wolf v. Walker, which found Wisconsin's ban on same-sex marriage unconstitutional.
However, ongoing legal challenges and uncertainties remain. Wisconsin is one of two states that refer to a "husband" in the statutory definition of a parent, and attempts to change this have stalled in the Republican-controlled legislature. This lack of updated state laws means that same-sex parents in Wisconsin worry that their parental rights won't be honoured by future court or administrative decisions. For example, in 2018, three years after the US Supreme Court had legalized same-sex marriage nationwide, a couple had to return to court to secure the parental rights of their second son.
Another issue arises in determining the length of marriage for purposes of spousal maintenance (alimony), as maintenance is linked to the length of marriage. It is unclear whether the courts will use the date of the couple's actual marriage or the date Wisconsin recognised the legality of their marriage.
Furthermore, it is uncertain how the courts will handle custody for children of same-sex couples. While these issues may not directly impact happily married LGBTQ+ couples, they could become problematic in the event of a divorce. The current ambiguity of the laws will likely need to be addressed to protect the rights of all Wisconsin residents.
Finally, while same-sex marriage is now legal across the US, some warn that if a future US Supreme Court overturns the Obergefell v. Hodges decision, Wisconsin's constitutional ban on same-sex marriage could come back into effect.
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Frequently asked questions
No, same-sex marriage has been legally recognized in Wisconsin since October 6, 2014, after the resolution of a lawsuit challenging the state's ban.
The lawsuit was Wolf v. Walker, filed by the ACLU, which ruled that Wisconsin's ban on marriage for same-sex couples violated the U.S. Constitution.
On October 6, 2014, the U.S. Supreme Court refused to hear an appeal by the state of Wisconsin, allowing same-sex marriages to proceed.
Same-sex couples in Wisconsin gained the freedom to marry, and the state was required to recognize the marriages of same-sex couples who were lawfully married in other states.
While same-sex marriage is now legal in Wisconsin, there are still legal ambiguities that impact same-sex couples, particularly regarding divorce, alimony, and child custody. Additionally, Wisconsin's laws and constitution continue to refer to "husband" and "wife," reflecting ongoing risks to LGBTQ+ rights in the state.
