We jumped with both feet into the sea of ambiguity. On Friday the 13th no less. In some ways, it feels like it all happened so fast and so unexpectedly. In reality, it was years in the making.
On November 7, 2006, voters in Wisconsin approved by a 59-to-41 margin a constitutional amendment to ban same-sex marriage and the recognition thereof as well as the recognition of any same-sex relationship deemed substantially similar to marriage. That action was a continuation of a nation-wide trend and the culmination of years of efforts by state republicans in particular and by conservatives in general to ensure that no gay couple in the state would ever be permitted the same legal protections as heterosexually married couples. Two years earlier, a wave of similar constitutional bans had begun in earnest to wash over the nation, a direct reaction to the legalization of same-sex marriage in the state of Massachusetts on May 17, 2004. In 1998, Alaska was the first state to pass a constitutional amendment banning same-sex marriage. When Massachusetts legalized same-sex marriage five and a half years later, just two other states had since passed constitutional bans. But in less than six months after the historic action in Massachusetts, the number of such bans in the U.S. exploded, passing in 13 more states. When Wisconsin’s turn came two years later, it joined the company of 25 other states where same-sex marriage was constitutionally banned. The republicans and conservatives who led and pushed the effort in Wisconsin believed that by enshrining such a ban in the state’s constitution, they would ensure for all time that same-sex marriages would not become reality here. Yet remarkably, it took less than eight years to prove that belief wrong.
On Friday, June 6, 2014, U.S. District Judge Barbara Crabb issued an opinion and order in Wolf et al vs. Walker et al, a lawsuit that challenged the constitutionality of Wisconsin’s ban on same-sex marriage. In her 88-page ruling, Judge Crabb wrote the following:
Two motions are before the court: (1) a motion to dismiss for failure to state a claim upon which relief may be granted filed by defendants Scott Walker, J.B. Van Hollen and Oskar Anderson, dkt. #66; and (2) a motion for summary judgment filed by plaintiffs. Dkt. #70…. Having reviewed the parties’ and amici’s filings, I am granting plaintiffs’ motion for summary judgment and denying defendants’ motion to dismiss because I conclude that the Wisconsin laws prohibiting marriage between same-sex couples interfere with plaintiffs’ right to marry, in violation of the due process clause, and discriminate against plaintiffs on the basis of sexual orientation, in violation of the equal protection clause.
And with that decision the weddings began.
Madison police Officers Zach Kimbrew, Matt Kenny and Sue Carnell deliver cake to people celebrating same-sex marriages outside the City-County Building in Madison, Wisconsin on Friday, June 6, 2014. Photo by Gail Chondron.
The story behind the viral photo of Madison police officers delivering cake
Other federal judges have ruled similarly on bans in other states, so Judge Crabb’s decision was not altogether surprising. What made her approach unique, however, was action that she did not take. Other federal judges have stayed their decisions so that the appeals process could run its course. But Judge Crabb, by not immediately issuing an implementing order, could not in turn issue a stay of her decision since the absence of an implementing order meant the ruling was not final. The absence of an implementing order also meant that the state of Wisconsin likewise could not file a stay with the appeals court. Judge Crabb scheduled a hearing for Thursday, June 19 in order to hear from the plaintiffs what relief they sought from the injury caused by the ban.
In the meantime, county clerks were left without explicit instructions regarding the issuance of marriage licenses to same-sex couples. When asked at a hearing the following Monday whether clerks could legally issue these licenses, Judge Crabb simply responded, “I never said anything” about whether county clerks should grant marriage licenses to same-sex couples. “That hasn’t been decided.” But neither did she say that the marriages should not be going forward. She reiterated that, while she found Wisconsin’s constitutional amendment banning same-sex marriage a violation of the U.S. Constitution, she had not yet ordered the state to stop enforcing the ban. Opponents of same-sex marriage, in particular the state’s attorney general, interpreted this to mean that the ban was still intact because Judge Crabb did not issue an injunction barring the state from enforcing the same-sex marriage ban. Conversely, supporters of same-sex marriage interpreted Judge Crabb’s ruling to mean that the ban was no longer in effect, having been declared unconstitutional, and that county clerks no longer had legal standing to deny marriage licenses to same-sex couples. And so the weddings continued.
At the farmer’s market on Saturday morning, June 7, Don asked Al and me if we had gotten married. No, we said. Despite the previous day’s court ruling, we didn’t rush to the county courthouse. I felt no sense of urgency, and besides, although the two of us had previously talked in the abstract about whether we would get married should the opportunity arise, we hadn’t arrived at a decision. I felt, not ambivalence exactly, but … a lack of inspiration? It’s hard to put into words. Then Don told us that Timmo and Eric had gotten married the day before. And a little while later, we learned that Dan and Charlie had also gotten married. The heretofore abstract concept of same-sex marriage was now presented before us as a concrete reality … and my lack of feeling started to turn, to become aroused, to tap me on the shoulder, to smack me upside the head and ask, “Why not?”
For all intents and purposes, Al and I were already married and have been for almost twenty-three years. We have arranged our finances and set up our wills and powers of attorney so that the other is taken care of as much as is legally possible should one of us become deceased. We have named each other as beneficiaries in every place where one may designate such. In 1993, we registered as domestic partners when the city of Madison passed its ordinance. That summer we celebrated our relationship with a formal ceremony outdoors in the presence of friends and family, complete with thunder and lightning and tornado sirens. In 1996, we purchased together the house where we still live. When the state of Wisconsin passed its domestic partner law in the summer of 2009, we were early enough in line at the county clerk’s office to be included in a photograph that was published in USA Today. Somehow, Al has all these years put up with my quirkiness and unpredictability. He has talked me through periods of intense difficulty, frustration and anger. We have had our moments of sadness. But the joy that we have experienced together – that joy will forevermore be ours, legal marriage or no. Seeing Al smile and laugh is truly and thoroughly uplifting. What more could one want from a relationship than to see one’s partner be glad?
In our county, 63 marriage licenses were issued to same-sex couples on the day that Judge Crabb struck down the state’s marriage ban. The next day, Saturday, 69 more such licenses were issued. The clerk’s office was closed on Sunday, but 36 more such licenses were issued on Monday. On Tuesday, 14 more. On Wednesday, 10 more. Al and I were not counted in those statistics, and still we had made no effort to be added. But then a few things happened that nudged us toward action.
On Thursday, June 12, Al happened to speak on the phone with Brian, and Brian mentioned that he and Ken had married the day before. Wow. Hmm. The state’s attorney general was publicly encouraging same-sex couples not to apply for a marriage license while the legality of those licenses was in question. Oh, really? Judge Crabb moved up the date of the hearing to Friday, June 13. What? Suddenly it seemed that time was no longer on our side. The expectation was that Judge Crabb would issue a stay on her ruling and thereby end the issuance of marriage licenses to same-sex couples for an indefinite time. There was now an urgency that was previously absent. “Do you know where your birth certificate is?” I asked Al while we were having dinner that evening.
Friday, June 13 was a whirlwind of a day. While I juggled my morning work schedule in order to accommodate an 8:15 a.m. standing meeting, Al went to the county clerk’s office to find out what we needed to do to obtain a marriage license and to arrange for an officiant to conduct the ceremony. After my meeting ended at 9:30 a.m., I phoned Al to ask if the wedding was still on. Yes, he had been to the county clerk’s office and had scheduled a 10:30 a.m. meeting at an attorney’s office where the ceremony would be conducted. So I sped-walked from campus to the Capitol Square, in and out of the multitude of construction zones that have sprung up all over town this spring, making my way around oversized orange barrels and through the maze of orange plastic fencing, detouring hither and yon from closed sidewalks to open – not unlike a laboratory mouse eagerly searching for its cheesy reward.
I arrived at the city-county building in only about 15 minutes, an impressively speedy accomplishment. Two other same-sex couples were already seated in the waiting area of the county clerk’s office. The county clerk himself greeted us in person, asked if we had the necessary documents and whether we needed an officiant. Since Al had already made the arrangements, we were good to go. At 10:10 a.m., we were called to the desk of the next available representative, and by 10:30 a.m., the county clerk’s staff was congratulating us on receiving our marriage license. We had no time to celebrate just yet because we had to hustle to the attorney’s office several blocks away, marriage license in hand, because our appointment was at 10:30 a.m.
We readily found the building where the attorney was located and took the elevator to the ninth floor. An empty reception desk greeted us when the elevator doors opened, so we stood at the desk and waited patiently for someone to return. After a few minutes, someone appeared and apologized for not being there when we arrived, but she knew instantly who we were there to see. “The happy couple is here,” she said into the phone. Happy couple? Us? Well, I guess she was right. We were feeling happy. This was an exciting moment, an historical moment, a moment we were proud to witness and to partake in. (Sorry for the dangling preposition.) We felt, well, real. The implicit (and sometimes explicit) dictum that marriage was for other people but not for us had gone away.
We were invited into the spacious library of the law office where the attorney would conduct the ceremony. When she arrived a couple of minutes later, she greeted us and congratulated us on our marriage. The ceremony was brief, yet deeply significant to Al and me. An attorney acquaintance, whom we didn’t previously realize worked in that same law office, happened to walk by and came in the library to witness our marriage. Afterwards, I asked the attorney who conducted our ceremony what was likely to happen at Judge Crabb’s hearing scheduled for 1:00 p.m. that afternoon. The attorney said she expected the judge to stay her decision and that the state would file its appeal. But Wisconsin would now be in a long line of states where other appeals were making their way through the court system, and it was probable that decisions on those appeals would be made well before Wisconsin’s case would be heard. Still, she reassured us: “You are legally married.”
We hurried back to campus, wending our way back through the construction maze. The realization that Al and I were now married didn’t take long to sink in. Still, despite my especially upbeat mood, I was feeling guilty because I had told my supervisor that I would probably be back by 10:30 a.m., and here it was nearly noon by the time I got back to the office. My supervisor was all smiles with her congratulations.
The previous week, I had made plans to leave work at 2:00 p.m. on June 13 so that Al and I could drive up to Washington Island to catch one of the evening ferries. Our sudden change of schedule compressed my available work time even more. Then at 1:50 p.m., I felt a sinking sensation as two people stopped in with urgent business, the phone rang, and a few time-sensitive e-mails showed up in my inbox. I did my best to keep calm and carry on and managed to leave by about 2:05 p.m. Not bad considering how fast everything was moving that day.
While driving north, I turned on the radio at 3:00 p.m. to listen to NPR, expecting to hear in the state news segment that Judge Crabb had issued a stay on her now-one-week-old decision regarding the state’s same-sex marriage ban. The reporter only announced that the hearing had taken place and that there was no word yet of the judge’s action. Reports at 3:30 p.m., 4:00 p.m., 4:30 p.m. and 5:00 p.m. likewise had no further word. Then around 5:30 p.m., we stopped in Green Bay to fill up the car. I went to use the restroom, and as I was about to leave, I thought I heard the D.J. on the radio station that was playing in the convenience store announce that same-sex marriages in the state were now on hold. I hurried back to the car and told Al what I had just heard. He turned on the radio to get the latest update, but by that time, the state news segment was finished, and they had moved on to other stories. It was shortly after 6:00 p.m. when the next news report confirmed what I had heard back at the convenience store. Al and I had been married just seven hours before the weddings were brought to a halt.
I had expected Judge Crabb to stay her decision. What I had not expected was my reaction to hearing that news. For seven hours of my life, I had felt different than I had ever felt before. It was a first for me to feel that I belonged to the larger society and that the larger society considered me to be one of its own. I was no longer outside looking in. Curious, huh? Because then when the news came over the radio that Judge Crabb had stayed her decision and that same-sex marriages in the state were to cease, I immediately and unexpectedly found myself back outside looking in.
And so today Al and I are floating, swimming, riding the waves in the sea of ambiguity. Just what is our legal status? No one seems to know. It could be another year before the same-sex marriage question in this country is resolved judicially. Well, we’ve waited before. Now we’ll wait some more. In the meantime, if nothing else, at least we have humour.
Ole lay on his deathbed. He was so weak, he could no longer walk. But then he smelled the beautiful aroma of Lena’s rhubarb pie wafting upstairs from the kitchen. He mustered enough strength to crawl downstairs on his hands and knees. There it was on the table, the heavenly rhubarb pie fresh out of the oven! Ole pulled himself up to the table and reached out to get one last taste before his imminent demise. Then Lena smacked his hand away and scolded, “Ole! Leave that alone. It’s for the funeral.” [Humour courtesy of A Prairie Home Companion]
• As of 5 p.m. on Thursday, June 12, at least 637 marriage licenses for same-sex couples had been applied for in Wisconsin since Judge Crabb’s ruling was issued. Source: Interactive Map-Counties Where Gay Marriage Is Now Allowed
• By the time Judge Crabb issued the stay on her ruling on Friday, June 13, Dane County had issued 215 marriage licenses to same-sex couples. Milwaukee County had issued 230 marriage licenses to same-sex couples. Source: Dane County Clerk, Milwaukee County Clerk