IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

VIRGINIA WOLF and CAROL SCHUMACHER, ROY BADGER and GARTH WANGEMANN, CHARVONNE KEMP and MARIE CARLSON, and JUDITH TRAMPF and KATHARINA HEYNING,

Plaintiffs,

vs.

Case No.

SCOTT WALKER, in his official capacity as Governor of Wisconsin, J.B. VAN HOLLEN, in his official capacity as Attorney General of Wisconsin, RICHARD G. CHANDLER, in his official capacity as Secretary of Revenue of Wisconsin, OSKAR ANDERSON, in his official capacity as State Registrar of Wisconsin, GARY KING, in his official capacity as Eau Claire County District Attorney, JOSEPH CZARNEZKI, in his official capacity as Milwaukee County Clerk, and SCOTT MCDONELL, in his official capacity as Dane County Clerk,

Defendants.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Preliminary Statement
1. Plaintiffs Virginia Wolf and Carol Schumacher, Roy Badger and Garth Wangemann, Charvonne Kemp and Marie Carlson, and Judith Trampf and Katharina Heyning (collectively, “Plaintiffs”) are all loving, committed, same-sex couples. They bring this action pursuant to 42 U.S.C. § 1983 to challenge the validity under the United States Constitution of Article XIII, § 13 of the Constitution of Wisconsin. That provision bars marriage between two people of the same sex and further bars the recognition of any legal status substantially similar to marriage for same-sex couples. Plaintiffs further challenge, on the same basis, any and all

provisions of Wisconsin’s marriage statutes (Wis. Stat. ch. 765) that refer to marriage as a relationship between a “husband and wife,” if and to the extent that such provisions constitute a statutory ban on marriage for same-sex couples (collectively with Article XIII, § 13, the “marriage ban”). Plaintiffs seek declaratory and injunctive relief for violations of the Equal Protection and Due Process Clauses of the U.S. Constitution (U.S. Const. amend. xiv, § 1).
2. Marriage is universally recognized and celebrated as the hallmark of a couple’s love for and commitment to each other. When two people marry, they commit personally and publicly to build a life together, and they ask their families, friends, communities, and government to respect, honor, and support that commitment. Marriage has long been recognized and valued for its beneficial contribution to the welfare of society and to individual happiness. Lesbians and gay men in Wisconsin are denied the freedom afforded to different-sex couples in this State to have their loving, committed relationships recognized through marriage.
3. Historically, marriage in the United States has been a much more restrictive institution than it is today. Through various mechanisms, states have at times prohibited marriage among slaves, interracial marriage, and even marriage between two people of different faiths. State laws also made a woman the subordinate partner in a marriage, legally barred from controlling her own finances and property. Wisconsin, however, once had a laudable history of supporting the freedom to marry on equal terms. For example, Wisconsin never banned marriage between people of different races. In 1850, Wisconsin became one of the first states to enact legislation protecting the property rights of married women, and by the turn of the twentieth century, Wisconsin had lifted many other legal restrictions on a married woman’s ability to exercise financial independence from her husband.
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4. Now, through the actions of legislatures and courts across the country, 17 states and the District of Columbia have extended the freedom to marry to same-sex couples. Yet Wisconsin, a historic leader in marriage equality, maintains one of the most restrictive bans on marriage for same-sex couples in the nation. Wisconsin’s constitutional amendment barring same-sex couples from marrying not only denies loving, committed, same-sex couples the dignity and status that only marriage can confer on their relationships and their families, it also prohibits the extension to same-sex couples of the same legal protections, duties, and benefits that married couples are allowed by law. The State deprives same-sex couples of these rights and freedoms for no other reason than their sexual orientation and their sex.
5. The Plaintiffs in this action are three same-sex couples who seek the freedom to marry in Wisconsin to establish and affirm publicly the love they feel for each other and the mutual commitment they have made, and one same-sex couple who asks the State of Wisconsin to recognize the marriage that they have legally contracted in another jurisdiction. Wisconsin’s denial of the freedom to marry has harmed these couples and their families in numerous ways. Carol Schumacher was unable to seek family and medical leave to care for Virginia Wolf when she was ill because they were not married. Roy Badger and Garth Wangemann struggle financially to pay for health insurance that would be more affordable if they were married. Judith Trampf was denied the right to make health care decisions for her unconscious partner because she could not prove her entitlement to do so. And every one of these couples suffers the stigma that comes from the State’s denigration of their relationships as unworthy of recognition.
6. Wisconsin’s marriage ban inflicts two additional harms on Plaintiffs. First, the Supreme Court’s ruling in United States v. Windsor, 570 U.S. ___, 133 S. Ct. 2675 (2013), which prohibits the federal government from treating state-sanctioned marriages of same-sex
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couples differently from marriages between a man and a woman, means that all federal spousal protections and obligations now flow to married same-sex couples living in states that recognize their marriages. Some of those protections are also extended, as a result of Windsor, to married same-sex couples living in states where their marriages are not recognized. But Wisconsin’s marriage ban deprives the unmarried Plaintiff couples any access to these federal spousal benefits—benefits they could receive if they lived across the state line in Iowa or Minnesota and benefits they could access if they simply left the State to marry.
7. But leaving the State to marry puts Plaintiffs in the way of the second harm. Wisconsin’s marriage ban discourages these unmarried Plaintiffs from marrying elsewhere and puts the married Plaintiffs at imminent risk of prosecution under Wis. Stat. § 765.30(1) (the “marriage evasion statute” or “marriage evasion law”), which makes it a criminal offense for a Wisconsin resident to leave the State to contract a marriage that is prohibited or void here. By solemnizing their love and commitment in a state that acknowledges the dignity of their relationship, Carol Schumacher and Virginia Wolf risk criminal prosecution in their home state. The unmarried Plaintiffs are forced to choose between the risk of prosecution and foregoing access to any federal spousal protections. Once again, Wisconsin has no justification for this treatment other than Plaintiffs’ sexual orientation and sex.
8. Wisconsin’s refusal to recognize these Plaintiffs’ committed relationships, its elimination of even the possibility of seeking redress through the state legislature, and the possibility of criminal prosecution for doing nothing more than marrying the person they love has led these Plaintiffs to seek relief from this Court. Plaintiffs ask that the Court fulfill its solemn duty of ensuring to all Americans the fundamental freedoms that the Constitution of the United States guarantees. Wisconsin’s marriage ban denies those freedoms. Plaintiffs therefore
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ask this Court to declare unconstitutional and enjoin enforcement of Article XIII, § 13 of the Wisconsin Constitution and any provisions of Wisconsin’s marriage law that could be construed as limiting marriage to different-sex couples, on the grounds that they violate the Equal Protection and Due Process Clauses of the United States Constitution (U.S. Const. amend. xiv, § 1). Plaintiffs also ask this court to enjoin enforcement of the marriage evasion statute against these Plaintiffs on the same grounds.
Jurisdictional Statement 9. Plaintiffs bring this action under 42 U.S.C. §§ 1983 and 1988 to redress deprivations of rights, privileges, and immunities secured by the Constitution of the United States under color of State law. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3).
Venue 10. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b) because Defendants Walker, Van Hollen, Chandler, Anderson, McDonell and King reside and have offices within the district and all Defendants reside in the State of Wisconsin, and because the events giving rise to Plaintiffs Wolf, Schumacher, Trampf, and Heyning’s claims occurred, and will occur, in this district.
The Plaintiffs 11. Plaintiffs Virginia Wolf and Carol Schumacher reside in Eau Claire, Wisconsin. They are a loving, committed, same-sex couple legally married under the laws of Minnesota. They wish to have their Minnesota marriage recognized here. 12. Plaintiffs Roy Badger and Garth Wangemann reside in Milwaukee, Wisconsin. They are a loving, committed, same-sex couple, and they wish to marry in Wisconsin. They would marry in Wisconsin but for the marriage ban.
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13. Plaintiffs Charvonne Kemp and Marie Carlson reside in Milwaukee, Wisconsin. They are a loving, committed, same-sex couple, and they wish to marry in Wisconsin. They would marry in Wisconsin but for the marriage ban.
14. Plaintiffs Judith “Judi” Trampf and Katharina “Katy” Heyning reside in Madison, Wisconsin. They are a loving, committed, same-sex couple, and they wish to marry in Wisconsin. They would marry in Wisconsin but for the marriage ban.
The Defendants 15. Defendant Scott Walker is sued in his official capacity as the Governor of the State of Wisconsin. Walker is a person within the meaning of 42 U.S.C. § 1983, and he is, was, and will be acting under color of state law at all times relevant to this Complaint. In his capacity as governor, Walker has a duty under the Wisconsin Constitution to ensure that the laws of the State of Wisconsin, including the marriage ban and the marriage evasion statute, are faithfully executed. 16. Defendant J.B. Van Hollen is sued in his official capacity as Attorney General of Wisconsin. Van Hollen is a person within the meaning of 42 U.S.C. § 1983, and he is, was, and will be acting under color of state law at all times relevant to this Complaint. In his capacity as Attorney General, Van Hollen has authority to initiate a prosecution under Wisconsin’s marriage evasion statute. 17. Defendant Richard G. Chandler is sued in his official capacity as Secretary of Revenue of the State of Wisconsin. Chandler is a person within the meaning of 42 U.S.C. § 1983, and he is, was, and will be acting under color of state law at all times relevant to this Complaint. In his capacity as Secretary of Revenue, Chandler has authority to enforce the revenue code of Wisconsin, including its provisions related to the treatment for revenue purposes of marriages contracted in Wisconsin and in other jurisdictions.
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18. Defendant Oskar Anderson is sued in his official capacity as State Registrar. Anderson is a person within the meaning of 42 U.S.C. § 1983, and he is, was, and will be acting under color of state law at all times relevant to this Complaint. In his capacity as State Registrar, Anderson has the authority to establish the form of a marriage license in Wisconsin, and to accept for registration and assign a date of registration to marriage documents.
19. Defendant Gary King is sued in his official capacity as Eau Claire County District Attorney. King is a person within the meaning of 42 U.S.C. § 1983, and he was, is, and will be acting under color of state law at all times relevant to this Complaint. In his capacity as District Attorney, King has the authority to initiate a prosecution under the marriage evasion statute.
20. Defendant Joseph J. Czarnezki is being sued in his official capacity as Milwaukee County Clerk. Czarnezki is a person within the meaning of 42 U.S.C. § 1983, and he is, was, and will be acting under color of state law at all times relevant to this Complaint. In his capacity as Milwaukee County Clerk, Czarnezki has the authority to issue or withhold a marriage license, and to ensure compliance with laws that prohibit the issuance of a marriage license to a same-sex couple.
21. Defendant Scott McDonell (collectively with Walker, Van Hollen, Chandler, Anderson, King, and Czarnezki, “Defendants”) is being sued in his official capacity as Dane County Clerk. McDonell is a person within the meaning of 42 U.S.C. § 1983, and he is, was, and will be acting under color of state law at all times relevant to this Complaint. In his capacity as Dane County Clerk, McDonell has the authority to issue or withhold a marriage license, and to ensure compliance with laws that prohibit the issuance of a marriage license to a same-sex couple.
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General Allegations 22. Wisconsin law would allow Virginia and Carol, Roy and Garth, Charvonne and Marie, and Judi and Katy to marry or have their marriages recognized here but for the fact that they are same-sex couples. They are not related to one another by blood or marriage. None is married to anyone else, and all are over the age of 18. All of them have the capacity to consent to marry, and each couple consents or has consented to marry one another. Virginia Wolf and Carol Schumacher 23. Virginia Wolf and Carol Schumacher have been in a loving, committed relationship for more than 38 years. Together they raised two children, a daughter and a son, and they now have four grandchildren, two girls and two boys. They live in Eau Claire with their dog “Z,” a border collie/Australian shepherd mix. When domestic partnerships became available in Wisconsin in 2009, Carol and Virginia were the first couple in Eau Claire to sign up. 24. Virginia, who will turn 75 next month, is a professor emeritus of English at the University of Wisconsin, Stout, where she worked and taught for 24 years. Virginia retired from the university on January 1, 2001. She is also a former minister in the Unitarian Universalist Church, and remains an active church member. Virginia was born and raised in Kansas, where she met Carol. They moved to Wisconsin in 1977 when Virginia took the university job. 25. Carol, age 60, retired five years ago, after a 30-year career that included working as an elections administrator for the City of Eau Claire, and also as the city clerk there. Carol also has a Master of Arts in marriage and family therapy, and worked as a therapist for a few years at the University of Wisconsin, Madison. So while she has counseled other people on issues in their marriages, she is not able to get the State of Wisconsin to recognize her own. Like Virginia, she was born and raised in Kansas. Carol, too, is active in their church.
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26. Virginia and Carol met through mutual friends in Lawrence, Kansas, when Virginia was looking for someone to help with housekeeping and child care in exchange for room and board. At the time, Virginia had two young children from a previous relationship. Virginia and Carol ended up raising the children together. Their daughter, Laura, known as Niña, now 47, lives near Oshkosh with her husband and two daughters, Samantha, 16, and Megan, 12. David, their son, is 42 and lives in Cottage Grove with his two sons, Finn, 4, and Graham, 2.
27. Carol’s extended family has always been supportive of Carol, Virginia, and their family. Virginia’s family is religiously conservative, and were not completely approving of her and Carol. Still, they were never unkind and have always included Virginia and Carol in the family
28. In the 1980’s Carol and Virginia tried several times to sign up for a family membership at the YMCA in Eau Claire. The YMCA denied their applications because its policy was to refuse to recognize a same-sex couple as a family.
29. Carol and Virginia face other obstacles in taking care of each other that they would not face if they could marry. Over the years, Virginia has had a few surgeries and other illnesses. On those occasions, Carol, who worked for the City of Eau Claire, was not permitted to take family leave to care for Virginia. And until 2009, when Virginia and Carol became domestic partners, they could not be covered under each other’s health insurance. If Carol had been recognized as Virginia’s spouse, she could have been covered immediately.
30. On another occasion, Virginia was in the emergency room for chest pains, and an emergency room nurse refused to let Carol into the treatment area to comfort Virginia, ostensibly because Carol was not legally Virginia’s family.
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31. Carol and Virginia married in the Unitarian Universalist Church in Eau Claire on December 21, 1990, the 15th anniversary of their first date in 1975. A Unitarian minister officiated at the ceremony, where Carol and Virginia wore silk suits and carried flowers, and their children gave them away. Despite below-freezing Wisconsin weather, the church was packed, and so was the party at Carol and Virginia’s home afterward. However, the State of Wisconsin did not recognize this marriage.
32. Carol and Virginia were married legally in Minnesota on December 21, 2013, their 38th anniversary. As Virginia put it, “We’ve been inching towards matrimony for 38 years!” But being married under the laws of Minnesota is not enough. For one thing, their marriage in Minnesota puts Carol and Virginia at risk of prosecution under Wisconsin’s marriage evasion statute. More importantly, Carol and Virginia want to have their marriage recognized under the laws of Wisconsin, their home state and the state where they have made their lives and raised their family. For Carol, “the main reason I want my marriage to Virginia to be recognized is that it would be an affirmation of our relationship and our family.” Virginia says, “the protections and benefits we’re missing out on are also still really important to me.”
33. Their granddaughters would like to see their marriage recognized too. That wish grew even stronger last summer, when Samantha and Megan attended the wedding of a same-sex couple in Minneapolis, where Virginia officiated as a Unitarian Universalist Minister. Both girls were really moved by the ceremony, and they talked about it a lot afterwards. They would like their grandmothers’ love to receive the same acknowledgement and respect in their home state.
34. After 38 years of a committed, loving relationship and family life, the State of Wisconsin still treats Carol and Virginia as legal strangers and treats Carol as a legal stranger to the couple’s children. Carol and Virginia look forward to the day when Wisconsin recognizes
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their relationship as deserving of the same legal protections, respect, and dignity that are accorded to marriages between different-sex spouses every day.
Roy Badger and Garth Wangemann 35. Plaintiffs Roy Badger, 56, and Garth Wangemann, 58, met through mutual friends in 1975, when both were in college at the University of Wisconsin, Milwaukee. They have been a couple for 37 years, since the day in 1976 when each came out to the other. Garth loves Roy for his “gentle and giving” nature. Once, when Roy and Garth were still in college and Garth was strapped for cash, Roy helped with Garth’s dorm bill. Roy says that Garth “has a terrific heart.” For example, Garth is a pen pal to several gay inmates, because, in Roy’s words, he’s “trying to be supportive to people who have been abandoned by everyone.” 36. Garth is a lifelong Wisconsinite and grew up in Sheboygan. Roy was born in Illinois, and moved around the Midwest as a young child until his stepfather got a trucking job in Burlington, Wisconsin when Roy was about 12, and the family settled there. Today, the couple lives in Milwaukee with their two dogs, Daisy and Winston. 37. Roy and Garth are members of the United Church of Christ in Milwaukee. On August 16, 2009, Roy and Garth had a private church commitment ceremony with just a handful of friends, their pastor, and the pastor’s wife. The memory of the ceremony is bittersweet, says Roy, because “it felt like something we were doing in secret.” 38. In 2009, Roy and Garth also registered as domestic partners in order to qualify for the limited protections domestic partnership provides them. However, they know that their domestic partnership provides them with only a few state law protections and none of the federal protections, recognition, and respect reserved to married couples.
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39. For 32 years, Roy has worked at the university where he and Garth met. He is the editor of the campus directory. Garth worked in customer service for a retail costume website, but his job was outsourced in May of 2013 and Garth was laid off. Since then, Garth has been doing some temp work for the company while looking for full-time work.
40. Like many Americans, Roy and Garth have been struggling financially in recent years. They lost their condo to foreclosure four years ago, and both of them had to file for bankruptcy. Worse, since Garth was laid off last year, he has been paying for health insurance through COBRA. On only Roy’s salary and Garth’s unemployment, the couple is finding it increasingly difficult to afford rent, household expenses, and Garth’s health insurance. They have had to sell many of their belongings on eBay just to meet Garth’s COBRA payment.
41. Health care coverage is a major concern for Roy and Garth, but so is their ability to make health and end-of-life decisions for each other, and to have those decisions respected by both doctors and their families. In 2011, Garth was diagnosed with lung cancer. While still in the hospital recovering from successful surgery for the cancer, Garth had a serious medical emergency—one his doctors still don’t fully understand. He coded three times, and his doctors decided to place Garth in a medically induced coma from which he did not emerge for more than a month.
42. During this period, the doctors held several meetings with Garth’s family to decide how to proceed. Before the surgery—at the suggestion of Garth’s surgeon—Garth had signed a power of attorney, giving Roy the authority to make medical decisions for him, authority that any different-sex spouse could count on without question. Even though Roy had the legal authority to make decisions for Garth, Roy included Garth’s father in the discussions.
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43. Garth’s relationship with his father had not been easy. When, at 20, Garth told his family he was gay, his father kicked him out of the house, hurling a piece of furniture at Garth as he packed up his car to leave. Garth was estranged from his family—allowed home only at Christmas—for nearly three decades until his mother became ill with lung cancer.
44. During Garth’s own health crisis, Roy made it clear that he believed Garth would survive, and he insisted on keeping him on life support during the coma. Garth’s father wanted to take Garth off life support. After he recovered, Garth learned from his sisters that his father had gone so far as to talk with attorneys about trying to override Roy’s power of attorney. Garth later said that he was not upset that his father wanted to take him off life support, but “what hurt the most was that he still didn’t look at Roy as my spouse after all this time.” Garth was so hurt and upset that he no longer speaks to his father.
45. If Roy and Garth had been able to enter into a legal marriage in Wisconsin, Roy’s authority to make end-of-life decisions would have been unquestioned.
46. Fortunately, Garth recovered from the coma and he remains cancer-free, but he still has lingering nerve damage and balance problems, and he also suffers from diabetes. Because they are a same-sex couple and their relationship is not recognized by the State, Roy and Garth remain vulnerable. As a state employee, Roy can get Garth coverage through his employer-provided health insurance, but it will still be expensive—more expensive than if Garth were Roy’s spouse—because unlike married couples Roy is likely to be taxed on the value of the insurance. Moreover, Roy and Garth cannot be certain that the State, their families, and health care providers will recognize the decision-making authority that each has given to the other. Different-sex couples, who are legally allowed to marry in this State, do not face these same risks.
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Charvonne Kemp and Marie Carlson 47. Charvonne Kemp, 43, and Marie Carlson, 48, have been in love and committed exclusively to each other for seven years. They live in Milwaukee, where Charvonne works for UMB Fund Services in Milwaukee as a mutual fund accountant. She handles the cash flows and trade activity, and strikes a price for NASDAQ daily. Marie is a raw materials handler for Wrought Washer. Marie is responsible for allocating, tracking, and moving all of the steel that comes in and out of the company’s Milwaukee facility. 48. Charvonne and Marie met in a MySpace group for lesbians over 30. At first the group was a place for members to share dating stories and get advice. Eventually, the group decided that half the members should be mentors to the other half, giving them dating advice and support. Charvonne was assigned to be Marie’s mentor, but the two fell for each other and started dating instead. 49. Charvonne moved around when she was growing up, even globe-trotting a bit with her military stepfather. She was living in Los Angeles when she and Marie first started dating. Marie, who had lived in Milwaukee since the third grade, moved out to L.A. to be with Charvonne, but the two didn’t stay long. Charvonne had two sons from a prior marriage and a prior relationship, and she and Marie believed that Wisconsin was a better place to raise them than L.A. So the entire family came back to Milwaukee in early 2007. 50. Charvonne and Marie’s older son, Alexander, is 21 and serves in the Air Force. He and his wife, Autumn, have two children of their own, a daughter, Kylie, two, and a son, Kaden, who was born last summer. Their younger son, Christopher, is just 11 so he still lives at home with Marie, Charvonne, and Charvonne’s younger brother and sister. Marie and Charvonne were active in the PTA at Christopher’s school. They’ve both served as PTA
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officers, and Charvonne twice served on search committees to select a new school principal. Charvonne is currently on the Governance Council Committee at Christopher’s school. Both sons consider Marie to be their stepmother, even if the State of Wisconsin does not.
51. Charvonne says their relationship works because “Marie and I have similar interests and moral codes but we’re independent enough in ourselves that we’re okay if I want to go do something or she wants to be alone for a while.” Charvonne spends time on her own cooking, sewing, quilting, gardening, and even dancing in a local Turkish dance group.
52. Together, Charvonne, Marie, and Christopher are enthusiastic members of the Society for Creative Anachronism, and enjoy medieval reenactments with the group. The whole family swims at the YMCA once a week, and they enjoy Christopher’s many school performances—including an opera performed by his class. Last year, Marie coached Christopher’s baseball team.
53. Marie’s extended family was not always accepting of Marie and Charvonne and their family. But Marie’s mother came to Milwaukee to be with them when they registered as domestic partners, and they expect that both Marie’s parents will come to Milwaukee when Marie and Charvonne are allowed to marry. To Marie and Charvonne’s surprise and delight, Marie’s mother recently updated her Facebook page to tag Charvonne as her daughter-in-law.
54. Charvonne’s extended family is close and supportive. Charvonne is AfricanAmerican, the daughter and granddaughter of civil rights activists. She thinks that her grandmother, an NAACP veteran, laid down the law a long time ago making it clear that, in their family, a same-sex couple was the same as any other.
55. Marie and Charvonne are domestic partners, but that is not enough. When Charvonne’s mother died, Marie had to use vacation time to go to the funeral—she couldn’t take
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bereavement leave. And without marriage in Wisconsin, if either Marie or Charvonne got seriously ill the federal Family and Medical Leave Act would not protect them.
56. At bottom, though, Marie and Charvonne want very much to get married for the same reasons most couples do. “I love her and want to spend the rest of my life with her,” says Charvonne of Marie. Marriage is “that final commitment to another person.… I’m old fashioned in that way.” Marie says “I want to call Charvonne my wife and have people understand what that means. . . . I want to do it the right way and the right way is marriage.” They have thought about going to Illinois or Massachusetts or Canada to get married, especially after the Supreme Court’s decision in Windsor, but Charvonne says, “I’m not a big fan of breaking the law.” For Marie, if the marriage is not recognized in Wisconsin, “it doesn’t mean what it’s supposed to mean.” Marie feels strongly that the commitment she has made to Charvonne and their sons, and that they have made to Marie, should be legally recognized. “I want to proudly walk with my family.” According to Charvonne, “Everyone else in our lives accepts us as a couple except the law.”
Judi Trampf and Katy Heyning 57. Judith “Judi” Trampf, 53, and Katharina “Katy” Heyning, 51, will celebrate 25 years together this July. They met at Girl Scout Camp in Wyoming in 1982. Later, they were both members of a group of camp alumna from the Midwest who would get together outside of summer camp. They got to really know each other through the group, and discovered a lot of interests in common. After a few years, they fell for each other and started dating. 58. Both Judi and Katy work at the University of Wisconsin, Whitewater. Katy is the Dean of the College of Education and Professional Studies, and Judi is Director of Human Resources and Diversity. When they aren’t working, they garden and host dinner parties for
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friends at the home they share in Madison, Wisconsin. They also spend their time boating, kayaking, and traveling together—it doesn’t matter where—and they are Rally Chairs for their BMW Motorcycle Club. Judi and Katy registered as domestic partners in Madison on August 5, 2009.
59. Katy’s family accepts Judi, and Judi’s family has long viewed Katy as a family member. When Katy had surgery and her own mother couldn’t travel to be with her, Judi’s mother stepped in. When Judi’s father, who lived in Ripon, Wisconsin, was ill and hospitalized in 1994, Katy ran his business for him, travelling to Ripon with Judi three times a week, 70 miles each way, to help. Even so, after Judi and Katy had been together for 15 years, Judi’s family insisted on a wedding so that Judi and Katy’s relationship could be celebrated properly. They held a commitment ceremony on June 19, 2004 in James Madison Park in Madison, Wisconsin, followed by a reception for 150 friends, family, and colleagues.
60. Many years ago, Judi and Katy prepared health care powers of attorney for each other, but they know that such paperwork is no substitute for the security that marriage provides. In 2002, while on a trip to New Orleans, Katy had a seizure. In the emergency room, where Katy lay unconscious, Judi explained that she was Katy’s partner and designated health care decision maker. But Judi was told that unless she had the health care power of attorney document in hand, she would not be allowed to make any medical decisions on Katy’s behalf. The documents were at home in Wisconsin, so the hospital informed Judi that Katy’s brother, as her nearest relative, had the authority to make health care decisions, not Judi. “My brother was not as aware of my wishes as Judi,” says Katy.
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61. After Katy regained consciousness, she had trouble concentrating and responding to questions. Judi repeatedly answered questions on Katy’s behalf, and yet the health care providers continued to direct their questions to Katy, and to ignore Judi.
62. Out of concern that Katy might have another seizure and that Judi would not be permitted to make decisions for her, Judi and Katy ended up cutting their trip short and returning to Wisconsin, even though Katy was feeling better and they would have liked to stay. They now keep scanned copies of their health care powers of attorney on their phones so they are accessible wherever they go.
63. Judi and Katy’s current domestic partner status would not have solved the problem they encountered in New Orleans. That status is only recognized in Wisconsin, while marriage is understood everywhere and widely respected. And even in Wisconsin, Judi and Katy find that domestic partnership is not well understood, and they have on at least one occasion been asked to prove their partnership status with documentation—a request that married couples almost never encounter. “Legally, we have to have so many more documents, wills, and other things and we’re penalized even when we do have them,” says Judi. Domestic partnership also does not entitle Judi or Katy to federal protections that are reserved for spouses.
64. After 25 years, Judi and Katy have built a life together. They jointly own a house, two cars, a pontoon boat, and several bank accounts. Judi and Katy wish to marry because, according to Judi, “we want to know that if one of us is ill or dies, we will have the same protections as any other married couple after 25 years of being together.” More than that, though, Katy would like the public recognition that Judi is the love of her life. “We have been in love and faithful to each other for more than 25 years. We have cared for each other in sickness
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and in health, and we would like public recognition through marriage of our commitment until death do us part.”
The Discriminatory Wisconsin Marriage Ban 65. The State of Wisconsin establishes laws governing marriage. Wisconsin’s marriage ban provides that “Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.” Wis. Const. Art. XIII, § 13. 66. Wisconsin’s marriage ban is one of the most restrictive bans on marriage for same-sex couples in the nation. On its face, it expressly bars both marriage between two people of the same sex and the recognition of any legal status substantially similar to marriage. As a result, on its face, Wisconsin’s constitutional amendment does not permit Roy and Garth, Charvonne and Marie, and Judi and Katy to marry, and prohibits the recognition of Virginia and Carol’s out-of-state marriage. 67. Worse, Wisconsin law makes it a criminal offense to go outside the State to contract a marriage prohibited under the laws of Wisconsin. A violation bears penalties of up to $10,000 in fines and nine months in prison. Wis. Stat. § 765.30(1)(a).
Wisconsin’s Domestic Partnership Statute 68. In 2009, the Wisconsin legislature passed a domestic partnership law, Wis. Stat. ch. 770, which creates the status of domestic partnership that carries with it some, but nowhere near all, of the protections and obligations accorded to married couples. The domestic partnership law did not end the exclusion of same-sex couples from marriage. Indeed, it cannot do so under the terms of Wisconsin’s discriminatory marriage ban, which prohibits granting same-sex couples any status that is substantially similar to marriage.
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69. Moreover, even the limited domestic partnership law is currently under challenge in the Wisconsin Supreme Court in Appling v. Walker, No. 2011AP1572. A decision in that case is pending.
70. Even if the domestic partnership law were to be upheld, it is not an adequate substitute for marriage. Denying two people in a loving, committed relationship the freedom to marry denies them the opportunity to express and legally embody their commitment in the most serious way that society provides. It refuses them the opportunity to enter into a relationship that is universally respected and recognized as a symbol of their love and commitment. The novel domestic partnership designation withholds from same-sex couples the reverence and recognition associated only with marriage. It offers no more than a mundane entryway to an extremely limited subset of benefits. The essence of marriage is a private and public celebration of love and commitment; domestic partnerships fail to achieve that goal. Marriage is something many people hope for from a young age, an ideal they aspire to; domestic partnership is not.
71. Denying Plaintiffs and other lesbian and gay couples the freedom to marry also would make it impossible for them to receive the protections currently provided only to married couples under federal law. After Windsor, the federal Defense of Marriage Act (“DOMA”) no longer excludes same-sex couples from access to federal marriage responsibilities and protections. But even if same-sex couples move to Wisconsin after marrying elsewhere or risk criminal prosecution by leaving the State to marry, Wisconsin same-sex couples would still be denied those federal law protections for spouses that require the marriage to be recognized in their state of residence, such as veteran and family medical leave protections.
72. Barring same-sex couples from marriage also disqualifies them from critically important state law protections and responsibilities that different-sex couples rely upon to secure
20

their commitment to each other, and to safeguard their families. Even if they obtain a domestic partnership under Wisconsin’s domestic partnership law, same-sex couples are still denied numerous protections and obligations, including:
(a) the presumption of parenthood for a non-birth parent with respect to any child born within the marriage;
(b) the right to adopt a spouse’s child; (c) eligibility for stepparent visitation rights for the surviving spouse of a
deceased parent of a minor child; (d) the “married persons credit” and personal exemptions for state income tax
purposes; (e) certain tax deductions for medical insurance expenses for a spouse; (f) certain tax deductions for long term care insurance for a spouse; (g) eligibility of a surviving spouse of a veteran to be buried with their spouse
in a veterans’ cemetery; (h) entitlement of a surviving spouse to seek damages for loss of society and
companionship in case of wrongful death; (i) the presumption of confidentiality for communications with health
insurers about a spouse’s medical condition; and (j) protection against discrimination on the basis of marital status in
numerous contexts. 73. If the Wisconsin Supreme Court holds that the domestic partnership law violates Wisconsin’s constitutional marriage ban, same-sex couples would lose even the limited benefits that the law does provide.
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74. Wisconsin and this country have subjected lesbian and gay people to scorn and discrimination for many years, and they have done so because lesbians and gay men form intimate relationships with a person of the same sex. Although Wisconsin and this country have taken some steps to reduce discrimination against lesbians and gays, Wisconsin’s ban on marriage for same-sex couples is a striking and continuing vestige of the long history of discrimination towards lesbians and gay men. The marriage ban and the marriage evasion statute, together with the new, separate, inferior, and poorly understood status of domestic partnership instead of marriage, send a powerful message to same-sex couples, their families, and the public that lesbians and gay men are not good enough for marriage and their relationships are undeserving of the respect and dignity associated with marriage alone.
75. The substantive and dignitary inequities imposed on committed same-sex couples include particular harms to same-sex couples’ children, who are equally deserving of the stability, permanence, and legitimacy that are enjoyed by children of different-sex couples who marry. Civil marriage affords official sanctuary to the family unit, offering parents and children critical means to secure legal parent-child bonds, and a familiar, public way of demonstrating those bonds to third parties. By denying same-sex couples marriage, Wisconsin reinforces the view held by some that the family bonds that unite same-sex parents and their children are less consequential, enduring, and meaningful than those of different-sex parents and their children. Same-sex couples and their children accordingly must live with the vulnerability and stress inflicted by a lack of access to the same mechanisms for securing their legal relationships, and the ever-present possibility that others may question their familial relationship—in social, legal, educational, and medical settings and in moments of crisis—in a way that spouses can avoid by simple reference to being married.
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76. Children from a young age understand that marriage signifies an enduring family unit, and likewise understand that Wisconsin has deemed a class of families as less worthy than other families, undeserving of marriage, and not entitled to the same societal recognition and support as other families. Wisconsin has no interest adequate to justify marking the children of same-sex couples, including the children of Plaintiffs, with a badge of inferiority that will invite disrespect in school, on the playground, and in every other sphere of their lives.
77. Because Wisconsin denies lesbian and gay couples the esteem and understanding associated with marriage and stigmatizes them by relegating them to a separate and unequal legal status, one of the Plaintiff couples left the State to marry, subjecting themselves to an ongoing risk of criminal prosecution. All Plaintiff couples have been injured by Wisconsin’s refusal to allow them to marry or to recognize their marriages entered elsewhere. Wisconsin’s Exclusion of Same-Sex Couples from Marriage Is Not Rationally Related To A
Legitimate Governmental Purpose, Let Alone Substantially Related To An Important Governmental Purpose Or Narrowly Tailored To A Compelling Governmental Purpose
78. Wisconsin’s discriminatory exclusion of same-sex couples from marriage does not serve any compelling, important, or even legitimate government interest.
79. While the government has an interest in protecting child welfare, the exclusion of same-sex couples from marriage does not further this interest. There is no rational connection between excluding lesbian and gay couples from marriage and encouraging “traditional” different-sex couples to have children within marriage. Further, there is a consensus among child welfare experts, reflecting over 30 years of research, that children raised by same-sex couples are just as well adjusted as are children raised by different-sex couples. Moreover, excluding same-sex couples from marriage serves only to harm the children raised by lesbian and gay couples.
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80. There is no legitimate governmental interest in promoting traditional marriage or uniformity of marriage practices: a discriminatory marriage law cannot be justified solely on the basis of its long tradition or its common practice. Similarly, there is no state interest in promoting traditional marriage or uniformity of marriage practices with regard to same-sex couples who already have legal marriages from other jurisdictions. Such couples merely seek to enjoy a legal status that has already been conferred.
81. While the government may have fiscal interests, cost savings alone cannot justify a discriminatory allocation of a government benefit, absent an independent justification for why one class of people is burdened with the responsibility for the savings. Moreover, the exclusion of same-sex couples from marriage is not the least restrictive means nor is it sufficiently narrowly tailored to further, nor even rationally related to, this interest, because allowing samesex couples to marry will not increase any costs for the State of Wisconsin. Indeed, experience shows that states that have ended the exclusion of same-sex couples from marriage, including Iowa, have experienced increases in state revenues as a direct result.
82. Providing same-sex couples access, via domestic partnership status, to only a portion of the protections and responsibilities of marriage, while denying them the esteem and universal recognition of marriage, can only be explained as an effort to denigrate lesbian and gay persons. Reminding lesbian and gay couples of the history of discrimination, the domestic partnership status is by definition separate and unequal. Labeling lesbian and gay couples as inferior is not a legitimate governmental interest, but is per se discriminatory.
83. The State deprives same-sex couples of these freedoms for no other reason than their sexual orientation and their sex.
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Count One Violation of Due Process 84. Plaintiffs re-allege paragraphs 1 through 83 as though fully set forth herein. 85. Amendment XIV, § 1 of the United States Constitution provides that no State shall “deprive any person of life, liberty, or property, without due process of law . . . .” 86. The Due Process Clause protects the fundamental right to marry the person of one’s choice and related constitutional rights to liberty, dignity, autonomy, family integrity, and association. 87. Wisconsin’s marriage ban does not permit same-sex couples to marry nor does it permit the recognition of the marriages of same-sex couples lawfully entered into outside of Wisconsin. 88. There is no adequate justification for the exclusion of Plaintiffs from marriage or the refusal to recognize Plaintiffs’ marriages. Moreover, the exclusion of same-sex couples from marriage is not narrowly tailored nor is it the least restrictive alternative to further a compelling or important government interest. 89. Defendants’ duties and actions to ensure compliance with the marriage ban preventing Plaintiffs from lawfully marrying in the State of Wisconsin, and preventing the recognition of Plaintiffs’ marriages lawfully entered into outside Wisconsin, deprives Plaintiffs of the fundamental right to marry and their constitutional rights to liberty, dignity, autonomy, family integrity, and association without due process of law.
Count Two Violation of Equal Protection Based on Sexual Orientation 90. Plaintiffs re-allege paragraphs 1 through 83 as though fully set forth herein. 91. Amendment XIV, § 1 of the United States Constitution provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws.”
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92. Same-sex couples in committed relationships who wish to marry are similarly situated in every material respect to different-sex couples in committed relationships who wish to marry. Same-sex couples who have lawfully married outside of Wisconsin are similarly situated in every material respect to different-sex couples who have lawfully married outside of Wisconsin.
93. Wisconsin’s marriage ban does not permit same-sex couples to marry nor does it permit the recognition of the marriages of same-sex couples lawfully entered into outside of Wisconsin. It therefore discriminates facially and as applied to Plaintiffs and other lesbian and gay couples on the basis of sexual orientation.
94. Discrimination on the basis of sexual orientation is suspect and demands a heightened level of scrutiny under the United States Constitution, since the marriage ban and Defendant’s actions in administering and enforcing it purposefully single out a minority group (lesbians and gay men) that historically has suffered discriminatory treatment and been relegated to a position of political powerlessness solely on the basis of stereotypes and myths regarding their sexual orientation—a characteristic that bears no relation to their ability to contribute to society and is immutable in that it is central to their core identity.
95. There is no adequate justification for the exclusion of Plaintiffs from marriage or the refusal to recognize Plaintiffs’ marriages. Moreover, the exclusion of same-sex couples from marriage is not narrowly tailored nor is it the least restrictive alternative to further a compelling or important government interest. The marriage ban is not even rationally related to any legitimate government interest.
96. Defendants’ duties and actions to ensure compliance with the marriage ban preventing Plaintiffs from lawfully marrying in the State of Wisconsin, and preventing the
26

recognition of Plaintiffs’ marriages lawfully entered into outside Wisconsin, deprives Plaintiffs of the equal protection of the laws based on their sexual orientation.
Count Three Violation of Equal Protection Based on Gender 97. Plaintiffs re-allege paragraphs 1 through 83 as though fully set forth herein. 98. Amendment XIV, § 1 of the United States Constitution provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” 99. The Wisconsin marriage ban discriminates based on gender because it permits a man and woman to marry, but does not allow a man to marry a man, or a woman to marry a woman, and because it permits different-sex marriages lawfully entered into outside of Wisconsin to be recognized but does not allow the marriages of same-sex couples lawfully entered into outside of Wisconsin to be recognized. 100. Discrimination on the basis of sex is suspect and demands heightened scrutiny under the United States Constitution. 101. There is no adequate justification for the exclusion of Plaintiffs from marriage or the refusal to recognize Plaintiffs’ marriages. Moreover, the exclusion of same-sex couples from marriage is not narrowly tailored nor is it the least restrictive alternative to further a compelling or important government interest. The marriage ban is not even rationally related to any legitimate government interest. 102. Defendants’ duties and actions to ensure compliance with the marriage ban preventing Plaintiffs from lawfully marrying in the State of Wisconsin, and preventing the recognition of Plaintiffs’ marriages lawfully entered into outside Wisconsin, deprives Plaintiffs of the equal protection of the laws based on their gender.
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Prayer For Relief 103. WHEREFORE, Plaintiffs request that this Court enter judgment: (A) declaring that Article XIII, § 13 of the Wisconsin Constitution and all provisions of the Wisconsin marriage laws (Wis. Stat. ch. 765) that refer to marriage as a relationship between a “husband” and a “wife” and operate as a statutory ban on marriage for same-sex couples violate the Due Process Clause and the Equal Protection Clause of the United States Constitution (Amendment XIV, § 1) by preventing Plaintiffs from lawfully marrying in the State of Wisconsin and by preventing the recognition of Plaintiffs’ marriages lawfully entered into outside of the State; (B) permanently enjoining all Defendants from enforcing Article XIII, § 13 and any other sources of state law that operate to exclude same-sex couples from marriage or to deny recognition of the marriages of same-sex couples validly contracted in another jurisdiction; (C) permanently enjoining Defendants Van Hollen and King from enforcing Wisconsin’s marriage evasion statute against same-sex couples who marry outside of Wisconsin; (D) awarding Plaintiffs the costs and expenses of this action together with reasonable attorneys’ fees; and (E) entering such other and further relief as deemed appropriate by the Court.
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Dated: February 3, 2014

Respectfully submitted,

By: /s Laurence J. Dupuis By Their Attorneys

JOHN A. KNIGHT* American Civil Liberties Union Foundation Lesbian Gay Bisexual Transgender Project 180 North Michigan Avenue Suite 2300 Chicago, Illinois 60601 (312) 201-9740 jaknight@aclu.org

JAMES D. ESSEKS** American Civil Liberties Union Foundation Lesbian Gay Bisexual Transgender Project 125 Broad Street New York, New York 10004 (212) 549-2623 jesseks@aclu.org

LAURENCE J. DUPUIS SBN: 1029261 American Civil Liberties Union of Wisconsin Foundation 207 E. Buffalo Street, Suite 325 Milwaukee, Wisconsin 53202 (414) 272-4032 ldupuis@aclu-wi.org
* admission pending ** admission pro hac vice to be filed

HANS GERMANN** GRETCHEN E. HELFRICH** FRANK DICKERSON** Mayer Brown LLP 71 South Wacker Drive Chicago, Illinois 60606-4637 Telephone: (312) 782-0600 Facsimile: (312) 701-7711 hgermann@mayerbrown.com ghelfrich@mayerbrown.com fdickerson@mayerbrown.com

29

 
 Case: 3:14-cv-00064-bbc Document #: 119 Filed: 06/06/14 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

VIRGINIA WOLF and CAROL SCHUMACHER, KAMI YOUNG and KARINA WILLES, ROY BADGER and GARTH WANGEMANN, CHARVONNE KEMP and MARIE CARLSON, JUDITH TRAMPF and KATHARINA HEYNING, SALUD GARCIA and PAM KLEISS, WILLIAM HURTUBISE and LESLIE PALMER, and JOHANNES WALLMANN and KEITH BORDEN,
Plaintiffs,
v.
SCOTT WALKER, J.B. VAN HOLLEN, OSKAR ANDERSON, JOSEPH CZARNEZKI, WENDY CHRISTENSEN, and SCOTT MCDONELL,
Defendants.

Case No. 14-C-00064-SLC

STATE DEFENDANTS’ EMERGENCY MOTION FOR TEMPORARY STAY

An hour after the Court entered its Opinion and Order, Dane and

Milwaukee County officials informed the press that they would immediately

begin issuing marriage licenses to same-sex couples. See, e.g.,

http://www.jsonline.com/news/statepolitics/federal-judge-overturns-wisconsins-

gay-marriage-ban-b99286138z1-262161851.html;

http://us2.campaign-

Case: 3:14-cv-00064-bbc Document #: 119 Filed: 06/06/14 Page 2 of 5

archive2.com/?u=a228fef6f2b7dafef7ceed21a&id=5ac0ddbd80&e=21de97a90c, last

checked June 6, 2014. Moreover, Dane County has stated it will waive the

five-day waiting period to issue marriage licenses.

See

http://www.washingtonpost.com/national/judge-strikes-down-wisconsin-gay-

marriage-ban/2014/06/06/1ab5266e-edbe-11e3-8a8a-e17c08f80871_story.html.

Since the Court’s ruling, marriage licenses have, in fact, been issued to same-

sex couples in Wisconsin.

This is precisely the type of confusion and uncertainty that the State

Defendants intended to avoid by requesting a motion to stay. The Court’s

Opinion and Order (Dkt.118) does not appear to have been intended to create

such uncertainty. On the contrary, the Court expressly refrained from

issuing any injunctive relief and issued a schedule for further proceedings on

any such injunctive relief, and held State Defendants’ stay motion in

abeyance pending the outcome of the scheduled proceedings regarding

injunctive relief.

The U.S. Supreme Court, and more recently, the Ninth Circuit and Sixth

Circuit, have maintained the status quo after district courts have found state

laws banning same-sex marriage unconstitutional. See Herbert v. Kitchen,

134 S. Ct. 893 (Jan. 6, 2014); Latta v. Otter, No. 14-35420, at 5 (9th Cir. May

20, 2014) (Herbert “provides a clear message—the Court (without noted

dissent) decided that district court injunctions against the application of laws

- 2 -

Case: 3:14-cv-00064-bbc Document #: 119 Filed: 06/06/14 Page 3 of 5
forbidding same-sex unions should be stayed at the request of state authorities pending court of appeals review”); Tanco v. Haslam, No. 14-5297, at 1-2 (6th Cir. Apr. 25, 2014) (“a stay of the district court’s order pending consideration of this matter by a merits panel of this Court is warranted”); DeBoer v. Snyder, No. 14-1341 (6th Cir. Mar. 25, 2014) (“[t]here is no apparent basis to distinguish this case or to balance the equities any differently than the Supreme Court did in [Herbert]”). Yesterday, the Circuit Court of Appeals for the Tenth Circuit postponed until at least June 12, 2014 the District of Utah court’s order requiring the recognition of marriages conducted after the district court’s Kitchen decision (961 F. Supp. 2d 1181 (D. Utah 2013)) but before the Supreme Court granted its stay. See Evans v. State of Utah, 14-4060 (10th Cir. June 5, 2014).
The Milwaukee and Dane County clerks’ issuance of marriage licenses to same-sex couples this weekend creates the non-uniform result that some same-sex couples can marry and others cannot. Further, like the Utah couples who married before Justice Sotomayor stayed the district court’s ruling in Kitchen, those couples who marry may be thrown into legal limbo depending on further developments in the case.
State Defendants request the Court clarify its June 6, 2014, Opinion and Order (Dkt.118) to preserve the status quo until the Court has entered injunctive relief and decides State Defendants’ motion to stay (Dkt.115, 116.)
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Case: 3:14-cv-00064-bbc Document #: 119 Filed: 06/06/14 Page 4 of 5
State Defendants further request the Court immediately issue a temporary stay to preserve the status quo until its final decision on the scope of injunctive relief and State Defendants’ pending stay motion.
Alternatively, State Defendants request the Court schedule an emergency telephonic hearing to clarify the scope of its order. Such a request is reasonable under the circumstances, particularly in light of the Supreme Court’s ruling in Herbert, 134 S. Ct. 893.
Dated this 6th day of June, 2014.
Respectfully submitted,
J.B. VAN HOLLEN Attorney General s/Timothy C. Samuelson TIMOTHY C. SAMUELSON Assistant Attorney General State Bar #1089968 THOMAS C. BELLAVIA Assistant Attorney General State Bar #1030182 CLAYTON P. KAWSKI Assistant Attorney General State Bar #1066228 Attorneys for Defendants, Scott Walker, J.B. Van Hollen, and Oskar Anderson
- 4 -

Case: 3:14-cv-00064-bbc Document #: 119 Filed: 06/06/14 Page 5 of 5 Wisconsin Department of Justice Post Office Box 7857 Madison, Wisconsin 53707-7857 (608) 266-3542 (Samuelson) (608) 266-7477 (Kawski) (608) 266-8690 (Bellavia) (608) 267-2223 (fax) samuelsontc@doj.state.wi.us kawskicp@doj.state.wi.us bellaviatc@doj.state.wi.us
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 Case: 3:14-cv-00064-bbc Document #: 118 Filed: 06/06/14 Page 1 of 88

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

VIRGINIA WOLF and CAROL SCHUMACHER, KAMI YOUNG and KARINA WILLES, ROY BADGER and GARTH WANGEMANN, CHARVONNE KEMP and MARIE CARLSON, JUDITH TRAMPF and KATHARINA HEYNING, SALUD GARCIA and PAMELA KLEISS, WILLIAM HURTUBISE and LESLIE PALMER, JOHANNES WALLMANN and KEITH BORDEN,

Plaintiffs, v.

OPINION and ORDER 14-cv-64-bbc

SCOTT WALKER, in his official capacity as Governor of Wisconsin, J.B. VAN HOLLEN, in his official capacity as Attorney General of Wisconsin, OSKAR ANDERSON, in his official capacity as State Registrar of Wisconsin, JOSEPH CZARNEZKI, in his official capacity as Milwaukee County Clerk, WENDY CHRISTENSEN, in her official capacity as Racine County Clerk and SCOTT MCDONELL, in his official capacity as Dane County Clerk,

Defendants.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Plaintiffs Virginia Wolf, Carol Schumacher, Kami Young, Karina Willes, Roy Badger,

Garth Wangemann, Charvonne Kemp, Marie Carlson, Judith Trampf, Katharina Heyning,

Salud Garcia, Pamela Kleiss, William Hurtubise, Leslie Palmer, Johannes Wallmann and

1

Case: 3:14-cv-00064-bbc Document #: 118 Filed: 06/06/14 Page 2 of 88
Keith Borden are eight same-sex couples residing in the state of Wisconsin who either want to get married in this state or want the state to recognize a marriage they entered into lawfully outside Wisconsin. Standing in their way is Article XIII, § 13 of the Wisconsin Constitution, which states that “[o]nly a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.” In addition, various provisions in the Wisconsin Statutes, primarily in chapter 765, limit marriage to a “husband” and a “wife.” The parties agree that both the marriage amendment and the statutory provisions prohibit plaintiffs from marrying in Wisconsin or obtaining legal recognition in Wisconsin for a marriage they entered in another state or country. The question raised by plaintiffs’ complaint is whether the marriage amendment and the relevant statutes violate what plaintiffs contend is their fundamental right to marry and their right to equal protection of the laws under the Fourteenth Amendment to the United States Constitution.
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. (Defendants Joseph Czarnezki, Scott McDonell and Wendy Christensen, the clerks for Milwaukee County, Dane County and Racine County, have not taken a position on either motion, so I will refer to defendants Walker, Van Hollen and Anderson simply as “defendants” for the remainder of the opinion.) In addition, Julaine K. Appling, Jo Egelhoff,
2

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Jaren E. Hiller, Richard Kessenich and Edmund L. Webster (all directors or officers of Wisconsin Family Action) have filed an amicus brief on behalf of defendants. Dkt. #109. 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.
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.
This case is not about whether marriages between same-sex couples are consistent or inconsistent with the teachings of a particular religion, whether such marriages are moral or immoral or whether they are something that should be encouraged or discouraged. It is not even about whether the plaintiffs in this case are as capable as opposite-sex couples of
3

Case: 3:14-cv-00064-bbc Document #: 118 Filed: 06/06/14 Page 4 of 88
maintaining a committed and loving relationship or raising a family together. Quite simply, this case is about liberty and equality, the two cornerstones of the rights protected by the United States Constitution.
Although the parties in this case disagree about many issues, they do agree about at least one thing, which is the central role that marriage plays in American society. It is a defining rite of passage and one of the most important events in the lives of millions of people, if not the most important for some. Of course, countless government benefits are tied to marriage, as are many responsibilities, but these practical concerns are only one part of the reason that marriage is exalted as a privileged civic status. Marriage is tied to our sense of self, personal autonomy and public dignity. And perhaps more than any other endeavor, we view marriage as essential to the pursuit of happiness, one of the inalienable rights in our Declaration of Independence. Linda Waite and Maggie Gallagher, Case for Marriage 2 (Broadway Books 2000) (stating that 93% of Americans rate “having a happy marriage” as one of their most important goals, an ever higher percentage than “being in good health”). For these reasons and many others, “marriage is not merely an accumulation of benefits. It is a fundamental mark of citizenship.” Andrew Sullivan, “State of the Union,” New Republic (May 8, 2000). Thus, by refusing to extend marriage to the plaintiffs in this case, defendants are not only withholding benefits such as tax credits and marital property rights, but also denying equal citizenship to plaintiffs.
It is in part because of this strong connection between marriage and equal citizenship that the marriage amendment must be scrutinized carefully to determine whether it is
4

Case: 3:14-cv-00064-bbc Document #: 118 Filed: 06/06/14 Page 5 of 88
consistent with guarantees of the Constitution. Defendants and amici defend the marriage ban on various grounds, such as preserving tradition and wanting to proceed with caution, but if the state is going to deprive an entire class of citizens of a right as fundamental as marriage, then it must do more than say “this is the way it has always been” or “we’re not ready yet.” At the very least it must make a showing that the deprivation furthers a legitimate interest separate from a wish to maintain the status quo. Defendants attempt to do this by arguing that allowing same-sex couples to marry may harm children or the institution of marriage itself. Those concerns may be genuine, but they are not substantiated by defendants or by amici.
Under these circumstances, personal beliefs, anxiety about change and discomfort about an unfamiliar way of life must give way to a respect for the constitutional rights of individuals, just as those concerns had to give way for the right of Amish people to educate their children according to their own values, Wisconsin v. Yoder, 406 U.S. 205 (1972), for Jehovah’s Witnesses to exercise their religion freely, West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943), and for interracial couples to marry the person they believed was irreplaceable. Loving v. Virginia, 388 U.S. 1 (1967). In doing this, courts do not “endorse” marriage between same-sex couples, but merely affirm that those couples have rights to liberty and equality under the Constitution, just as heterosexual couples do.
BACKGROUND All plaintiffs in this case are same-sex couples. Virginia Wolf and Carol Schumacher
5

Case: 3:14-cv-00064-bbc Document #: 118 Filed: 06/06/14 Page 6 of 88
reside in Eau Claire, Wisconsin; Kami Young and Karina Willes reside in Milwaukee, Wisconsin. Both couples left Wisconsin to enter into a legal marriage in Minnesota and they wish to have their marriages recognized in Wisconsin. At the time that plaintiffs filed their summary judgment motion, plaintiffs Young and Willes were expecting a baby imminently.
Johannes Wallmann and Keith Borden reside in Madison, Wisconsin. They were married in Canada in 2007 and wish to have their marriage recognized in Wisconsin.
Roy Badger and Garth Wangemann reside in Milwaukee, Wisconsin, as do Charvonne Kemp and Marie Carlson. Judi Trampf and Katy Heyning reside in Madison, Wisconsin, as do plaintiffs Salud Garcia and Pam Kleiss. William Hurtubise and Leslie “Dean” Palmer reside in Racine, Wisconsin. Each of these five couples wishes to marry in Wisconsin. Hurtubise and Palmer want to adopt a child jointly, which they cannot do in Wisconsin while they are unmarried.
All plaintiffs meet the requirements for getting married in Wisconsin, with the exception that each wishes to marry someone of the same sex.
OPINION I. PRELIMINARY ISSUES Defendants raise three preliminary arguments supporting their belief that Wisconsin’s marriage ban on same-sex couples is immune from constitutional review, at least in this court: (1) Baker v. Nelson, 409 U.S. 810 (1972), is controlling precedent that precludes
6

Case: 3:14-cv-00064-bbc Document #: 118 Filed: 06/06/14 Page 7 of 88
lower courts from considering challenges to bans on same-sex marriage under the due process clause or the equal protection clause; (2) marriage between same-sex couples is a “positive right,” so the state has no duty to grant it; (3) under principles of federalism, states are entitled to choose whether to extend marriage rights to same-sex couples. None of these arguments is persuasive.
A. Baker v. Nelson In Baker v. Nelson, 191 N.W.2d 185, 187 (Minn. 1971), the Minnesota Supreme Court held that same-sex couples do not have a right to marry under the due process clause or the equal protection clause of the United States Constitution. When the plaintiffs appealed, the United States Supreme Court had “no discretion to refuse adjudication of the case on its merits” because the version of 28 U.S.C. § 1257 in effect at the time required the Court to accept any case from a state supreme court that raised a constitutional challenge to a state statute. Hicks v. Miranda, 422 U.S. 332, 344 (1975). (In 1988, Congress amended § 1257 to eliminate mandatory jurisdiction in this context). However, the Court “was not obligated to grant the case plenary consideration,” id., and it chose not to do so, instead issuing a one sentence order stating that “[t]he appeal is dismissed for want of a substantial federal question.” Baker v. Nelson, 409 U.S. 810 (1972). At the time, this type of summary dismissal was a common way for the Court to manage the relatively large number of cases that fell within its mandatory jurisdiction. Randy Beck, Transtemporal Separation of Powers in the Law of Precedent, 87 Notre Dame L. Rev. 1405, 1439-40
7

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(2012) (“Because the volume of . . . mandatory appeals did not permit full briefing and argument in every case, the Court adopted the practice of summarily affirming many lower court decisions and summarily dismissing others for want of a substantial federal question. These summary affirmances and dismissals were routinely issued without any opinion from the Court explaining its disposition.”). In fact, a few years later, the Court similarly handled another case involving gay persons when it summarily affirmed a decision upholding the constitutionality of a statute criminalizing sodomy. Doe v. Commonwealth's Attorney for City of Richmond, 403 F. Supp. 1199 (E.D. Va. 1975), aff'd, 425 U.S. 901 (1976).
Despite the absence of an opinion, full briefing or oral argument, a summary dismissal such as Baker is binding precedent “on the precise issues presented and necessarily decided by” the lower court. Mandel v. Bradley, 432 U.S. 173, 176 (1977). See also Chicago Sheraton Corp. v. Zaban, 593 F.2d 808, 809 (7th Cir. 1979) (“[A] summary disposition for want of a substantial federal question is controlling precedent.”). As a result, defendants argue that this court has no authority to consider the question whether a ban on marriage between same-sex couples violates the Constitution. They cite Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989), in which the Court stated that lower courts should adhere to the holdings of the Supreme Court, even if they “appea[r] to rest on reasons rejected in some other line of decisions, . . . leaving to this Court the prerogative of overruling its own decisions.”
The rule for summary affirmances and dismissals is not so clear cut. Those orders “are not of the same precedential value as would be an opinion of [the Supreme] Court
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treating the question on the merits.” Edelman v. Jordan, 415 U.S. 651, 671 (1974). For example, a summary dismissal is no longer controlling “when doctrinal developments indicate” that the Court would take a different view now. Hicks, 422 U.S. at 344 (internal quotations omitted). See also C. Steven Bradford, Following Dead Precedent: The Supreme Court's Ill-Advised Rejection of Anticipatory Overruling, 59 Fordham L. Rev. 39, 51 (1990) (citing Hicks for the proposition that “a precedent that has not been overruled may be disregarded when later doctrinal developments render it suspect.”).
It would be an understatement to say that the Supreme Court’s jurisprudence on issues similar to those raised in Baker has developed substantially since 1972. At the time, few courts had addressed any issues relating to the constitutional rights of gay persons; favorable decisions were even less frequent. E.g., Boutilier v. Immigration & Naturalization Service, 387 U.S. 118 (1967) (homosexual individual could be denied admission to United States on ground that homosexuality is a “psychopathic personality”). Perhaps because there were so few people who identified publicly as gay, it was difficult for courts to empathize with their plight.
In more recent years, the Supreme Court has issued a series of cases in which it has denounced the view implicit in cases such as Baker that gay persons are “strangers to the law.” Romer v. Evans, 517 U.S. 620, 635-36 (1996). In Romer, the Court invalidated under the equal protection clause a state constitutional amendment that discriminated on the basis of sexual orientation. In Lawrence v. Texas, 539 U.S. 558 (2003), the Court concluded that a Texas law criminalizing homosexual sodomy violated the due process
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clause, overruling Bowers v. Hardwick, 478 U.S 186 (1986), and implicitly the summary affirmance in Doe, 425 U.S. 901 (which the Court did not even mention).
To the extent Romer and Lawrence left any room for doubt whether the claims in this case raise a substantial federal question, that doubt was resolved in United States v. Windsor, 133 S. Ct. 2675 (2013), in which the Court invalidated the Defense of Marriage Act, a law prohibiting federal recognition of same-sex marriages authorized under state law. Before the case reached the Supreme Court, the Court of Appeals for the Second Circuit had discussed at length the continuing vitality of Baker and the majority had concluded over a vigorous dissent that Baker was no longer controlling. Compare Windsor v. United States, 699 F.3d 169, 178-79 (2d Cir. 2012) (“Even if Baker might have had resonance for Windsor's case in 1971, it does not today.”), with id. at 210 (Straub, J., dissenting) (“Subjecting the federal definition of marriage to heightened scrutiny would defy or, at least, call into question the continued validity of Baker, which we are not empowered to do.”). On appeal before the Supreme Court, those defending the law continued to press the issue, arguing that the lower court’s rejection of Baker as precedent made “the case for this Court's review . . . overwhelming.” Windsor v. United States of America, Nos. 12-63 and 12-307, Supplemental Brief for Respondent Bipartisan Legal Advisory Group of the U.S. House of Representatives, available at 2012 WL 5388782, at *5-6.
Despite the lower court’s and the parties’ debate over Baker, the Supreme Court ignored the case in both its decision and during the oral argument for Windsor. (In a companion case regarding same-sex marriage that was dismissed on prudential grounds,
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counsel for petitioners began discussing Baker during oral argument, but Justice Ginsburg cut him off, stating, “Mr. Cooper, Baker v. Nelson was 1971. The Supreme Court hadn't even decided that gender-based classifications get any kind of heightened scrutiny.” Oral argument in Hollingsworth v. Perry, No. 12-144, available at 2013 WL 1212745, at *12.) The Court’s silence is telling. Although the Court did not overrule Baker, the Court’s failure to even acknowledge Baker as relevant in a case involving a restriction on marriage between same-sex persons supports a view that the Court sees Baker as a dead letter. Cf. Romer, 517 U.S. at 642 (Scalia, J, dissenting) (noting Court’s failure to discuss Bowers in case decided before Court overruled Bowers in Lawrence). Not even the dissenters in Windsor suggested that Baker was an obstacle to lower court consideration challenges to bans on same-sex marriage.
Before Windsor, the courts were split on the question whether Baker was still controlling. Compare Pedersen v. Office of Personnel Management, 881 F. Supp. 2d 294, 307 (D. Conn. 2012) (Baker not controlling); Smelt v. County of Orange, 374 F. Supp. 2d 861, 873 (C.D. Cal. 2005) (same); In re Kandu, 315 B.R. 123, 138 (Bankr. W.D. Wash. 2004) (same), with Massachusetts v. United States Dept. of Health and Human Services, 682 F.3d 1, 8 (1st Cir. 2012) (Baker controlling); Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1003 (D. Nev. 2012) (same); Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1086 (D. Haw. 2012) (same); Morrison v. Sadler, 821 N.E.2d 15, 19 (Ind. Ct. App. 2005) (same). (Oddly, the first federal court to rule in favor of the right of same-sex couples to marry did not discuss Baker. Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010).) Since
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Windsor, nearly every court to consider the question has concluded that Baker does not preclude review of challenges to bans on same-sex marriage. E.g., Latta v. Otter, 1:13-CV-00482-CWD, — F. Supp. 2d. — , 2014 WL 1909999, *9 (D. Idaho May 13, 2014); Bostic v. Rainey, 970 F. Supp. 2d. 456, 470 (E.D. Va. 2014); Bishop v. U.S. ex rel. Holder, 962 F. Supp. 2d 1252, 1277 (N.D. Okla. 2014); Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1195 (D. Utah 2013). The only outlier seems to be Merritt v. Attorney General, CIV.A. 13-00215-BAJ, 2013 WL 6044329 (M.D. La. Nov. 14, 2013), in which the court cited Baker for the proposition that “the Constitution does not require States to permit same-sex marriages.” However, Merritt is not persuasive because the court did not discuss Romer, Lawrence or Windsor in its decision.
Even defendants seem to acknowledge that the writing is on the wall. Although this is a threshold issue, they bury their short discussion of it at the end of their summary judgment brief. Accordingly, I conclude that, despite Baker, I may consider the merits of plaintiffs’ claim.
B. Positive Rights vs. Negative Rights What is perhaps defendants’ oddest argument relies on a distinction between what defendants call “positive rights” and “negative rights.” In other words, the Constitution protects the rights of individuals to be free from government interference (“negative rights”), but it does not give them a right to receive government benefits (“positive rights”). Defendants cite cases such as DeShaney v. Winnebago County Dept. of Social Services, 489
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U.S. 189, 195 (1989), for the proposition that the Constitution “confer[s] no affirmative right to governmental aid.” Thus, defendants say, although the due process clause may protect the right of individuals to engage in certain intimate conduct (a “negative right”), it “does not preclude a state from choosing not to give same-sex couples the positive right to enter the legal status of civil marriage under state law.” Dfts.’ Br., dkt. #102, at 8.
Defendants’ argument has two problems. First, the Supreme Court has held on numerous occasions that marriage is a fundamental right protected by the Constitution. E.g., Turner v. Safley, 482 U.S. 78, 95 (1987); Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-640 (1974); Loving v. Virginia, 388 U.S. 1, 12 (1967). Thus, even if marriage is a “positive right” as defendants understand that term, marriage stands as an exception to the general rule.
Second, even if I assume that the state would be free to abolish the institution of marriage if it wished, the fact is that Wisconsin obviously has not abolished marriage; rather, it has limited the class of people who are entitled to marry. The question in this case is not whether the state is required to issue marriage licences as a general matter, but whether it may discriminate against same-sex couples in doing so. Even in cases in which an individual does not have a substantive right to a particular benefit or privilege, once the state extends that benefit to some of its citizens, it is not free to deny the benefit to other citizens for any or no reason on the ground that a “positive right” is at issue. In fact, under the equal protection clause, “the right to equal treatment . . . is not co-extensive with any substantive rights to the benefits denied the party discriminated against.” Heckler v. Mathews, 465 U.S.
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728, 739, 646 (1984). Therefore, “[t]he State may not . . . selectively deny its protective services to certain disfavored minorities without violating the Equal Protection Clause.” DeShaney, 489 U.S. at 197 n.3.
Defendants fail to distinguish this case from the others in which the Supreme Court considered the constitutionality of laws that denied the right to marry to some class of citizens. Loving, 388 U.S. 1 (interracial marriage); Zablocki v. Redhail, 434 U.S. 374 (1978) (marriage of parents who fail to make child support payments); Turner v. Safley, 482 U.S. 78 (1987) (marriage of prisoners). Although defendants say that their argument is “consistent” with Loving, Zablocki and Turner because those cases did nothing more than “recognize a negative right,” Dfts.’ Br., dkt. #102, at 10, defendants do not explain why marriage is a “positive right” when the state discriminates on the basis of sexual orientation, but a “negative right” when it discriminates on the basis of race, custody or financial status.
Defendants make a related argument that the government should not be required to “officially endorse the intimate and domestic relationships that gay and lesbian persons may choose to enter.” Dfts.’ Br., dkt. #102, at 9. They cite cases in which the Court held that there is no constitutional right to subsidies for having an abortion and that the government is entitled to have a preference for childbirth. Rust v. Sullivan, 500 U.S. 173, 201 (1991); Webster v. Reproductive Health Services, 492 U.S. 490, 509 (1989). Along the same lines, defendants argue that they are entitled to have a preference for marriage between oppositesex couples.
Even setting aside the many obvious factual differences between marriage and
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abortion, the analogy defendants attempt to draw is inapt for three reasons. First, as noted above, the state is already issuing marriage licenses to some citizens. The comparison to abortion would be on point only if, in the cases cited, the state had decided to fund abortions for heterosexual women but not for lesbians.
Second, abortion cannot be compared to marriage because the government does not have a monopoly on providing abortions. In other words, if the government refuses to use its resources to provide or fund abortions, a woman may seek an abortion somewhere else. In contrast, it is the state and only the state that can issue a marriage license. Thus, defendants’ “preference” for marriage between opposite-sex couples is not simply a denial of a subsidy, it is a denial of the right itself.
Defendants’ concern about “endorsing” marriage between same-sex couples seems to be one that has been shared by both judges and legislators in the past. E.g., Goodridge v. Dept. of Public Health, 798 N.E.2d 941, 986-87 (Mass. 2003) (Cordy, J., dissenting) (“The plaintiffs' right to privacy . . . does not require that the State officially endorse their choices in order for the right to be constitutionally vindicated.”); Dean v. District of Columbia CIV.A. 90-13892, 1992 WL 685364, *4 (D.C. Super. June 2, 1992) (“[L]egislative authorization of homosexual, same-sex marriages would constitute tacit state approval or endorsement of the sexual conduct, to wit, sodomy, commonly associated with homosexual status.”); Transcript of the Mark-Up Record of the Defense of Marriage Act, House Judiciary Committee, June 12, 1996 (statement of Rep. Sonny Bono that he is voting for DOMA because “I can’t tell my son [same-sex marriage is] ok, or I don’t think I can yet.”). These
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concerns may be common, but they rest on a false assumption about constitutional rights. Providing marriage licenses to same-sex couples on an equal basis with opposite-sex couples is not “endorsing” same-sex marriage; rather, it simply represents “a commitment to the law's neutrality where the rights of persons are at stake.” Romer, 517 U.S. at 623. See also Bowers, 478 U.S. at 205-06 (Blackmun, J., dissenting) (“[A] necessary corollary of giving individuals freedom to choose how to conduct their lives is acceptance of the fact that different individuals will make different choices.”).
There are many situations in which the Constitution requires the government to provide benefits using neutral criteria, even with respect to groups that are unpopular or that the government finds abhorrent, without any connotation that the government is endorsing the group. E.g., Rosenberger v. Rector & Visitors of University of Virginia, 515 U.S. 819 (1995) (public university could not rely on concerns of improper endorsement to justify refusal to fund student newspaper when funds were available to similarly situated groups); Capitol Square Review & Advisory Board v. Pinette, 515 U.S. 753 (1995) (state could not rely on concerns about endorsement to deny request of Ku Klux Klan to erect monument on public land when other similarly situated groups were allowed to do so). Thus, extending marriage to same-sex couples does not require “approval” of homosexuality any more than the Supreme Court “approved” of convicted criminals or deadbeat dads when it held in Turner, 482 U.S. 78, and Zablocki, 434 U.S. 374, that the right to marry extends to prisoners and fathers who have failed to make child support payments. In re Opinions of the Justices to the Senate, 802 N.E.2d 565, 569 (Mass. 2004) (“This is not a matter of social
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policy but of constitutional interpretation.”); Baker v. State, 744 A.2d 864, 867 (Vt. 1999) (“The issue before the Court . . . does not turn on the religious or moral debate over intimate same-sex relationships, but rather on the statutory and constitutional basis for the exclusion of same-sex couples from the secular benefits and protections offered married couples.”).
C. Judicial Restraint, Federalism and Respect for the Democratic Process Defendants and amici argue that federal courts should not question a state’s democratic determination regarding whether and when to extend marriage to same-sex couples. Rather, courts should allow states to serve as “laboratories of democracy” so that each state can learn from the experience of others and decide what works best for its own citizens. Oregon v. Ice, 555 U.S. 160, 171 (2009); New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). Defendants rely generally on principles of federalism and more specifically on the fact that regulation of marriage is a matter traditionally left to the states. A number of courts and dissenting judges in other cases have asserted a similar argument. Windsor, 133 S. Ct. at 2718-19 (Alito, J., dissenting) (“Because our constitutional order assigns the resolution of questions of this nature to the people, I would not presume to enshrine either vision of marriage in our constitutional jurisprudence.”); In re Marriage Cases, 183 P.3d 384, 463-64 (Cal. 2008) (Baxter, J., dissenting) (“By . . . moving the policy debate from the legislative process to the court, the majority engages in faulty constitutional analysis and violates the separation of powers.”); Hernandez v. Robles, 855 N.E.2d 1, 12 (N.Y. 2006) (“[W]e believe the present generation
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should have a chance to decide the issue through its elected representatives. We therefore express our hope that the participants in the controversy over same-sex marriage will address their arguments to the Legislature; that the Legislature will listen and decide as wisely as it can; and that those unhappy with the result—as many undoubtedly will be—will respect it as people in a democratic state should respect choices democratically made.”); Goodridge, 798 N.E.2d at 974 (Spina, J., dissenting) (“What is at stake in this case is not the unequal treatment of individuals or whether individual rights have been impermissibly burdened, but the power of the Legislature to effectuate social change without interference from the courts, pursuant to art. 30 of the Massachusetts Declaration of Rights.”).
Although I take no issue with defendants’ observations about the important role that federalism plays in this country, that does not mean that a general interest in federalism trumps the due process and equal protection clauses. States may not “experiment” with different social policies by violating constitutional rights.
The fundamental problem with defendants’ argument is that it cannot be reconciled with the well-established authority of federal courts to determine the constitutionality of state statutes or with the Fourteenth Amendment, the very purpose of which was to protect individuals from overreaching by the states. Jackson v. City of Joliet, 715 F.2d 1200, 1203 (7th Cir. 1983) (“The Fourteenth Amendment . . . sought to protect Americans from oppression by state government.”); De Leon v. Perry, 975 F. Supp. 2d 632, 665 (W.D. Tex. 2014) (“One of the court's main responsibilities is to ensure that individuals are treated equally under the law.”). To further that purpose, federal courts have invalidated state laws
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that violate constitutional rights, even when the law enjoys popular support and even when the subject matter is controversial. City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 448 (1985) (“It is plain that the electorate as a whole, whether by referendum or otherwise, could not order city action violative of the Equal Protection Clause.”); West Virginia Board of Education v. Barnette, 319 U.S. 624, 638 (1943) (“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”); Chambers v. State of Florida, 309 U.S. 227, 241 (1940) (“Under our constitutional system, courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are non-conforming victims of prejudice and public excitement.”); Laurence Tribe, American Constitutional Law § 15–10, at 1351 (2d ed. 1988) (“As in the case of racial segregation, it is often when public sentiment is most sharply divided that the independent judiciary plays its most vital national role in expounding and protecting constitutional rights.”).
Federalism was a common defense to the segregationist laws of the Jim Crow era. E.g., Naim v. Naim, 87 S.E.2d 749, 756 (Va. 1955) (in case upholding anti-miscegenation law, stating that “[r]egulation of the marriage relation is, we think, distinctly one of the rights guaranteed to the States and safeguarded by that bastion of States' rights”). See also
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Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 397 (1969) (Douglas, J., dissenting) (“States' rights are often used as a cloak to cover unconstitutional encroachments such as the maintenance of second-class citizenship for Negroes or Americans of Mexican ancestry.”). However, that defense has long since been discredited. Defendants’ federalism argument arises in a different context, but they identify no way to distinguish their argument from those the Supreme Court rejected long ago. Andersen v. King County, 138 P.3d 963, 1028-29 (Wash. 2006) (Bridges, J., dissenting) (in case involving claim for same-sex marriage, stating that, “had the United States Supreme Court adopted the plurality's [view of federalism], there would have been no Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).”).
Although Wisconsin’s same-sex marriage ban was approved by a majority of voters, is part of the state constitution and deals with a matter that is a traditional concern of the states, none of these factors can immunize a law from scrutiny under the United States Constitution. The Supreme Court has not hesitated to invalidate any of those types of laws if it concludes that the law is unconstitutional. Romer, 517 U.S. 620 (invalidating state constitutional amendment); Lucas v. Forty-Fourth General Assembly of State of Colorado, 377 U.S. 713, 736-37 (1964) (“[T]hat [a law] is adopted in a popular referendum is insufficient to sustain its constitutionality. . . . A citizen's constitutional rights can hardly be infringed simply because a majority of the people choose that it be.”); Brown v. Board of Education of Topeka, 347 U.S. 483, 493 (1954) (striking down school segregation while noting that “education is perhaps the most important function of state and local
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governments”). See also Baehr v. Lewin, 852 P.2d 44, 68 (Haw. 1993) (“The result we reach today is in complete harmony with the Loving Court's observation that any state's powers to regulate marriage are subject to the constraints imposed by the constitutional right to the equal protection of the laws.”). Even in Baker, 191 N.W.2d at 187, in which the Minnesota Supreme Court brushed off a marriage claim brought by a same-sex couple, the court acknowledged that “Loving does indicate that not all state restrictions upon the right to marry are beyond reach of the Fourteenth Amendment.”
To the extent that defendants mean to argue that a special rule should apply to the issue of same-sex marriage, they cite no authority for that view. There is no asterisk next to the Fourteen Amendment that excludes gay persons from its protections. Romer, 517 U.S. at 635.
In a footnote, amici argue that cases such as Loving, Turner and Zablocki are distinguishable because they “all involved laws that prevented individuals otherwise qualified for marriage from marrying, and have not gone to the essentials of what marriage means as the claim in this case does.” Amici Br., dkt. #109, at 17 n.3. However, this argument has nothing to do with federalism or the democratic process; rather, it goes to the scope of the right to marry, which is discussed below. Even if I assume for the purpose of this discussion that amici are correct about the distinction between this and previous cases about marriage, it would not mean that a general interest in what amici call “state sovereignty” would preclude review of Wisconsin laws banning same-sex marriage.
Defendants and amici cite Windsor, 133 S. Ct. 2675, and Schuette v. Coalition to
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Defend Affirmative Action, 134 S. Ct. 1623 (2014), to support their argument, but neither case is on point. First, defendants quote the statement in Schuette that there is “a fundamental right held not just by one person but by all in common. It is the right to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process.” Schuette, 134 S. Ct. at 1637. However, the holding in Schuette was that Michigan did not violate the equal protection clause by enacting a state constitutional amendment that prohibits discrimination in various contexts. The Court said nothing about state laws such as Wisconsin’s marriage amendment that require discrimination and the Court did not suggest that such laws are immune from constitutional review.
Windsor is closer to the mark, but not by much. It is true that the Supreme Court noted multiple times in its decision that the regulation of marriage is a traditional concern of the states. Windsor, 133 S. Ct. at 2689-90 (“By history and tradition the definition and regulation of marriage, as will be discussed in more detail, has been treated as being within the authority and realm of the separate States.”); id. at 2691 (“[R]egulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.”) (internal quotations omitted). In addition, the Court noted that the Defense of Marriage Act departed from that tradition by refusing to defer to the states’ determination of what qualified as a valid marriage. Id. at 2692 (“DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage.”).
However, defendants’ and amici’s reliance on Windsor is misplaced for three reasons. First, the Supreme Court’s observations were not new; the Court has recognized for many
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years that the regulation of marriage is primarily a concern for the states. In his dissent, Justice Scalia noted this point and questioned the purpose of the Court’s federalism discussion. Id. at 2705 (Scalia, J., dissenting) (“But no one questions the power of the States to define marriage (with the concomitant conferral of dignity and status), so what is the point of devoting seven pages to describing how long and well established that power is?”). Thus, it would be inappropriate to infer that the Court was articulating a new, heightened level of deference to marriage regulation by the states.
Second, the Court declined expressly to rely on federalism as a basis for its conclusion that DOMA is unconstitutional. Windsor, 133 S. Ct. at 2692 (“[I]t is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance.”). See also id. at 2705 (Scalia, J., dissenting) (“[T]he opinion has formally disclaimed reliance upon principles of federalism.”). But see id. at 2697 (Roberts, C.J., dissenting) (“[I]t is undeniable that its judgment is based on federalism.”).
Third, and most important, the Court discussed DOMA’s encroachment on state authority as evidence that the law was unconstitutional, not as a reason to preserve a law that otherwise would be invalid. In fact, the Court was careful to point out multiple times the well-established principle that an interest in federalism cannot trump constitutional rights. Id. at 2691 (“State laws defining and regulating marriage, of course, must respect the constitutional rights of persons.”); id. at 2692 (“[T]he incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may vary, subject to constitutional guarantees, from one State to the next.”); id. (“The States' interest
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in defining and regulating the marital relation [is] subject to constitutional guarantees.”). All this is not to say that concerns about federalism and the democratic process
should be ignored when considering constitutional challenges to state laws. It is obvious that courts must be sensitive to judgments made by the legislature and the voters on issues of social policy and should exercise the power of judicial review in rare instances. However, these concerns are addressed primarily in the context of determining the appropriate standard of review. We are long past the days when an invocation of “states’ rights” is enough to insulate a law from a constitutional challenge.
II. STANDARD OF REVIEW Plaintiffs’ claim arises under two provisions in the Fourteenth Amendment to the United States Constitution. First, plaintiffs contend that Wisconsin’s ban on same-sex marriage violates their fundamental right to marry under the due process clause. Second, they contend that the ban discriminates against them on the basis of sex and sexual orientation, in violation of the equal protection clause. As other courts have noted, the rights guaranteed by these constitutional provisions “frequently overlap.” Goodridge, 798 N.E.2d at 953. See also Lawrence, 539 U.S. at 575 (“Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects.”). In this case, the ultimate question under both provisions is whether the state may discriminate against same-sex couples in the context of issuing marriage licenses and recognizing marriages performed in other states. However, each clause
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presents its own questions about the appropriate standard of review. I will address the standard first under the due process clause and then under the equal protection clause.
A. Fundamental Right to Marry The “liberty” protected by the due process clause in the Fourteenth Amendment includes the “fundamental right” to marry, a conclusion that the Supreme Court has reaffirmed many times. Turner, 482 U.S. at 95 (“[T]he decision to marry is a fundamental right.”); Zablocki, 434 U.S. at 384 (“[The] right to marry is of fundamental importance for all individuals.”); Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-640 (1974) (“This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”); Loving, 388 U.S. at 12 (referring to marriage as “fundamental freedom”); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (right to marry is “central part of the liberty protected by the Due Process Clause”). In Loving, 388 U.S. at 12, the Court went so far as to say that marriage is “one of the basic civil rights of man.” The Supreme Court has articulated a standard of review “[w]hen a statutory classification significantly interferes with the exercise of a fundamental right” such as the right to marry, which is that the law “cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests.” Zablocki, 434 U.S. at 388. See also Beller v. Middendorf, 632 F.2d 788, 807 (9th Cir. 1980) (Kennedy, J.) (“[S]ubstantive due process scrutiny of a government regulation involves a
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case-by-case balancing of the nature of the individual interest allegedly infringed, the importance of the government interests furthered, the degree of infringement, and the sensitivity of the government entity responsible for the regulation to more carefully tailored alternative means of achieving its goals.”).
1. Scope of the right to marry The threshold question under the Zablocki standard is whether the right to marry
encompasses a right to marry someone of the same sex. Defendants say that it does not, noting that “[t]he United States Supreme Court has never recognized” a “right to marry a person of the same sex” and that same-sex marriage is not “deeply rooted in this Nation’s history and tradition,” which defendants say is a requirement to qualify as a fundamental right under the Constitution, citing Washington v. Glucksberg, 521 U.S. 702 (1997). Dfts.’ Br., dkt. #102, at 26. Amici add that “our Nation’s law, along with the law of our antecedents from ancient to modern times, has consistently recognized the biological and social realities of marriage, including its nature as a male-female unit advancing purposes related to procreation and childrearing.” Amici Br., dkt. #109, at 6. They cite cases in which they say the Supreme Court has “explicitly linked marriage and procreation.” Id. (quoting Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (“Marriage and procreation are fundamental to the very existence and survival of the race.”), and Maynard v. Hill, 125 U.S. 190, 211 (1888) (marriage is “the foundation of the family.”)). For many years, arguments similar to these were accepted consistently by the courts. E.g., Sevcik, 911 F. Supp. 2d at
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1013-14; Jackson, 884 F. Supp. 2d at 1071; Hernandez, 855 N.E. 2d at 10; Andersen, 138 P.3d at 979; Lewis v. Harris, 908 A.2d 196, 210 (N.J. 2006); Dean, 1992 WL 685364.
Defendants’ observation that the Supreme Court has not yet recognized a “right to same-sex marriage” is both obvious and unhelpful. When the Court struck down Virginia’s anti-miscegenation law in Loving, it had never before discussed a “right to interracial marriage.” If the Court had decided previously that the Constitution protected marriage between same-sex couples, this case would not be here. The question is not whether plaintiffs’ claim is on all fours with a previous case, but whether plaintiffs’ wish to marry someone of the same sex falls within the right to marry already firmly established in Supreme Court precedent. For several reasons, I conclude that it does.
a. Purposes of marriage I am not persuaded by amici’s argument that marriage’s link to procreation is the sole
reason that the Supreme Court has concluded that marriage is protected by the Constitution. Although several courts have adopted that view, e.g., Dean v. District of Columbia, 653 A.2d 307, 332 (D.C. 1995); Baehr, 852 P.2d at 56, I believe tat it is misguided. First, gay persons have the same ability to procreate as anyone else and same-sex couples often raise children together, so there is no reason why a link between marriage and procreation should disqualify same-sex couples.
Second, although the Supreme Court has identified procreation as a reason for marriage, it has never described procreation as a requirement. This point has been clear at
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least since Griswold v. Connecticut, 381 U.S. 479 (1965). If it were true that the Court
viewed procreation as a necessary component of marriage, it could not have found that
married couples have a constitutional right not to procreate by using contraception. Instead,
the Court described marriage as “a coming together for better or for worse, hopefully
enduring, and intimate to the degree of being sacred. It is an association that promotes a way
of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial
or social projects. Yet it is an association for as noble a purpose as any involved in our prior
decisions.” Id. at 486.
To the extent that Griswold leaves any ambiguity, it is resolved by Turner, 482 U.S.
78, which raised the question whether prisoners retain the right to marry while incarcerated.
The Supreme Court concluded that they did, despite the fact that the vast majority of
prisoners cannot procreate with their spouses. The Court stated:
Many important attributes of marriage remain . . . after taking into account the limitations imposed by prison life. First, inmate marriages, like others, are expressions of emotional support and public commitment. These elements are an important and significant aspect of the marital relationship. In addition, many religions recognize marriage as having spiritual significance; for some inmates and their spouses, therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication. Third, most inmates eventually will be released by parole or commutation, and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated. Finally, marital status often is a precondition to the receipt of government benefits (e.g., Social Security benefits), property rights (e.g., tenancy by the entirety, inheritance rights), and other, less tangible benefits (e.g., legitimation of children born out of wedlock). These incidents of marriage, like the religious and personal aspects of the marriage commitment, are unaffected by the fact of confinement or the pursuit of legitimate corrections goals.
Id. at 95-96. Turner makes it clear that the Court views marriage as serving a variety of
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important purposes for the couple involved, which may or may not include procreation, and that it is ultimately for the couple to decide what marriage means to them. (Although the Court stated that most inmate marriages “will be fully consummated” when the prisoner is released, there is obviously a difference between consummating a marriage and procreation. In any event, the Court did not suggest that an intent to consummate is a prerequisite to marriage.) Because defendants identify no reason why same-sex couples cannot fulfill the Court’s articulated purposes of marriage just as well as opposite-sex couples, this counsels in favor of interpreting the right to marry as encompassing the choice of a same-sex partner.
b. Nature of the decision In describing the type of conduct protected by the due process clause, including
marriage, family relationships, contraception, education and procreation, the Supreme Court has stated that the common thread is that they all relate to decisions that are central to the individual’s sense of identity and ability to control his or her own destiny. This point may have been made most clearly in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 851 (1992):
These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. See also Lawrence, 539 U.S. at 578 (state may not “control th[e] destiny” of its citizens by
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criminalizing certain intimate conduct); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (Constitution protects right “to be free from unwarranted governmental intrusion into matters . . . fundamentally affecting a person.”).
In addition, the Supreme Court has stated that the liberty protected in the due process clause includes the right to choose your own family. Moore v. City of East Cleveland, Ohio, 431 U.S. 494, 499, 506 (1977) (“A host of cases . . . have consistently acknowledged a private realm of family life which the state cannot enter. . . . [W]hen the government intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation.”). With respect to marriage in particular, the Supreme Court has stated repeatedly that it is a matter of individual choice. Hodgson v. Minnesota, 497 U.S. 417, 435 (1990) (“[T]he regulation of constitutionally protected decisions, such as where a person shall reside or whom he or she shall marry, must be predicated on legitimate state concerns other than disagreement with the choice the individual has made.”); Roberts v. U.S. Jaycees, 468 U.S. 609, 620 (1984) ("[T]he Constitution undoubtedly imposes constraints on the State's power to control the selection of one's spouse.”); Loving, 388 U.S. at 12 (“Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State. . . The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness.”). See also Zablocki, 434 U.S. at 403-04 (Stevens, J., concurring in the judgment) (“The individual's interest in making the marriage
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decision independently is sufficiently important to merit special constitutional protection.”). In Bowers, when the Supreme Court refused to acknowledge that homosexual
relationships are entitled to constitutional protection, Justice Blackmun noted in his dissent that the Court was being inconsistent with previous cases in which it had protected decisions that “form so central a part of an individual's life.” Bowers, 478 U.S. at 204-05 (Blackmun, J., dissenting). See also id. at 218-19 (Stevens, J., dissenting) (“[E]very free citizen has the same interest in ‘liberty’ that the members of the majority share. From the standpoint of the individual, the homosexual and the heterosexual have the same interest in deciding how he will live his own life.”). In Lawrence, 539 U.S. at 567, the Court acknowledged that, in Bowers, it had “fail[ed] to appreciate the extent of the liberty at stake,” when it framed the question as whether there is a “right to homosexual sodomy.” Instead, the Court should have recognized that “our laws and tradition afford constitutional protection” to certain “personal decisions” and that “[p]ersons in a homosexual relationship may seek autonomy” to make those decisions “just as heterosexual persons do.” Id. at 574.
Of course, Lawrence is not directly on point because that case was about sexual conduct rather than marriage, but even in Lawrence, the Supreme Court acknowledged that sexual conduct is but “one element in a personal bond that is more enduring.” Lawrence, 539 U.S. at 567. The Court went on to state that its holding “should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects.” Id. (emphasis added). More generally, the Court reaffirmed the principle that, in determining
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the scope of a right under the due process clause, the focus should be on the nature of the decision at issue and not on who is making that decision. Turner, 478 U.S. 82 (right to marry extends to prisoners); Zablocki, 434 U.S. 374 (right to marry extends to father who failed to make court-ordered child support payments); Eisenstadt, 405 U.S. at 453 (right of married couples to use contraception recognized in Griswold must be extended to single persons as well). See also Latta, 2014 WL 1909999, at *12 (“[The argument that the right to same-sex marriage is a] ‘new right’ . . . attempts to narrowly parse a right that the Supreme Court has framed in remarkably broad terms. Loving was no more about the ‘right to interracial marriage’ than Turner was about the ‘prisoner's right to marry’ or Zablocki was about the ‘dead-beat dad's right to marry.’”).
If the scope of the right to marry is broad enough to include even those whose past conduct suggests an inclination toward violating the law and abdicating responsibility, then it is difficult to see why it should not be broad enough to encompass same-sex couples as well. Defendants do not suggest that the decision about whom to marry is any less important or personal for gay persons than it is for heterosexuals. Accordingly, I conclude defendants are making the same mistake as the Court in Bowers when they frame the question in this case as whether there is a “right to same-sex marriage” instead of whether there is a right to marriage from which same-sex couples can be excluded. Latta, 2014 WL 1909999, at *13; Kitchen, 961 F. Supp. 2d at 1199-1200; Andersen, 138 P.3d at 1022 (Fairhurst, J., dissenting).
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c. History of exclusion Defendants argue that including the choice of a same-sex partner within the right to
marry would contradict Washington v. Glucksberg, 521 U.S. 702, 722 (1997), in which the Supreme Court stated that its “substantive-due-process jurisprudence . . . has been a process whereby the outlines of the ‘liberty’ specially protected by the Fourteenth Amendment . . . have . . . been carefully refined by concrete examples involving fundamental rights found to be deeply rooted in our legal tradition.” Although the Court previously had recognized “the right of a competent individual to refuse medical treatment,” it declined to expand the scope of that right to include a more general “right to commit suicide,” in part because of “a consistent and almost universal tradition that has long rejected the asserted right” to suicide. Id. at 723-24. Defendants say that a similar conclusion is required with respect to the right of same-sex couples to marry because that right had not been recognized in any state until recently.
As an initial matter, it is hard to square aspects of Glucksberg with the holdings in Griswold and Roe v. Wade, 410 U.S. 113 (1973), in which the Court recognized the rights to contraception and abortion, neither of which were “deeply rooted” in the country’s legal tradition at the time. Lawrence, 539 U.S. at 588 (Scalia, J., dissenting) (“Roe [has] been . . . eroded by [Glucksberg] . .. [because] . . .Roe . . . subjected the restriction of abortion to heightened scrutiny without even attempting to establish that the freedom to abort was rooted in this Nation's tradition.”). Despite the tension between these cases, the Court has reaffirmed the rights recognized in both Roe and Griswold since Glucksberg. Lawrence, 539
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U.S. at 564 (citing holding of Griswold and Roe with approval); Stenberg v. Carhart, 530 U.S. 914, 921 (2000) (reaffirming Roe).
In any event, I conclude that Glucksberg is not instructive because that case involved the question whether a right to engage in certain conduct (refuse medical treatment) should be expanded to include a right to engage in different conduct (commit suicide), “two acts [that] are widely and reasonably regarded as quite distinct.” Id. at 725. In this case, the conduct at issue is exactly the same as that already protected: getting married. The question is whether the scope of that right may be restricted depending on who is exercising the right.
Both Lawrence and Loving support a view that the state cannot rely on a history of exclusion to narrow the scope of the right. When the Supreme Court decided those cases, there had been a long history of states denying the rights being asserted. Although the trend was moving in the other direction, many states still prohibited miscegenation in 1967 and many still prohibited homosexual sexual conduct in 2003. Lawrence, 539 U.S. at 573 (noting that 13 states retained sodomy laws); Loving, 388 U.S. at 7 (noting that 16 states had anti-miscegenation laws). See also Andrew Sullivan, Same-Sex Marriage: Pro and Con Introduction xxv (Vintage 2004) (in 1968, one year after Loving, 72 percent of Americans disapproved of interracial marriages); Michael Klarman, Courts, Backlash and the Struggle for Same-Sex Marriage Introduction i (Oxford University Press 2012) (when Court decided Brown v. Board of Education, 21 states required or permitted racial segregation in public schools).
In both Loving and Lawrence, proponents of the laws being challenged relied on this
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history of exclusion as evidence that the scope of the right should not include the conduct at issue. Bowers, 478 U.S. at 211 (Blackmun, J., dissenting) (In Loving, “defenders of the challenged statute relied heavily on the fact that when the Fourteenth Amendment was ratified, most of the States had similar prohibitions.”); Lawrence, 539 U.S. at 594-95 (Scalia, J., dissenting) (“[T]he only relevant point is that [sodomy] was criminalized—which suffices to establish that homosexual sodomy is not a right deeply rooted in our Nation's history and tradition.”) (internal quotations omitted). In fact, in Bowers, 478 U.S. at 192, the Court itself relied on the fact that laws against sodomy had “ancient roots.” However, in both Lawrence and Loving, the Supreme Court held that history was not dispositive, particularly in light of more recent changes in law and society. Lawrence, 539 U.S. at 571-72 (“[There is] an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. History and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry.”) (internal quotations and alterations omitted); Casey, 505 U.S. at 847–48 (“Interracial marriage was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause in Loving v. Virginia.”).
Past practices cannot control the scope of a constitutional right. If the scope of the right is so narrow that it extends only to what is so well-established that it has never been challenged, then the right serves to protect only conduct that needs no protection. Casey,
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505 U.S. at 847 (It is “tempting . . . to suppose that the Due Process Clause protects only those practices, defined at the most specific level, that were protected against government interference by other rules of law when the Fourteenth Amendment was ratified. . . . But such a view would be inconsistent with our law.”). Thus, the scope of the right must be framed in neutral terms to prevent arbitrary exclusions of entire classes of people. In this way, courts remain true to their “obligation . . . to define the liberty of all [rather than] mandate [their] own moral code.” Id. at 850.
d. “Definition” of marriage Finally, amici attempt to distinguish Loving on the ground that sex, unlike race,
“go[es] to the essentials of what marriage means.” Amici Br., dkt. #109, at 17 n.3. See also id. at 11 (opposite-sex requirement “has always been the universal essential element of the marriage definition”). This sort of “definitional” argument against marriage between samesex couples was prominent in many of the early cases, in which courts said that the right to marry was not implicated because it simply was “impossible” for two people of the same sex to marry. Baker, 191 N.W.2d at 187 (“But in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.”); Jones v. Hallahan, 501 S.W.2d 588, 590 (Ky. Ct. App. 1973) (“In substance, the relationship proposed by the appellants does not authorize the issuance of a marriage license because what they propose is not a marriage.”); Singer v. Hara, 522 P.2d 1187, 1191 (Wash. Ct. App. 1974) (“The operative distinction
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[between interracial marriage and same-sex marriage] lies in the relationship which is described by the term ‘marriage' itself, and that relationship is the legal union of one man and one woman.”); Adams v. Howerton, 486 F. Supp. 1119, 1122 (C.D. Cal. 1980) (“The term ‘marriage’ . . . necessarily and exclusively involves a contract, a status, and a relationship between persons of different sexes.”); Dean, 653 A.2d at 361 (Terry, J., concurring)(“same-sex ‘marriages’ are legally and factually—i.e., definitionally—impossible”).
Although amici try to rely on the inherent “nature” of marriage as a way to distinguish anti-miscegenation laws from Wisconsin’s marriage amendment, the argument simply reveals another similarity between the objections to interracial marriage and amici’s objections to same-sex marriage. In the past, many believed that racial mixing was just as unnatural and antithetical to marriage as amici believe homosexuality is today. Wolfe v. Georgia Railway & Electric Co., 58 S.E. 899, 902-03 (Ga. 1907) (stating that “there is a universally recognized distinction between the races” and that miscegenation is “unnatural” and “productive of evil, and evil only”); Kinney v. Commonwealth, 71 Va. 858, 869 (1878) (interracial marriage “should be prohibited by positive law” because it is “so unnatural that God and nature seem to forbid” it); Lonas v. State, 50 Tenn. (3 Heisk) 287, 310 (1871) (“The laws of civilization demand that the races be kept apart.”). This view about interracial marriage was repeated by the trial court in Loving, 388 U.S. at 3 (“Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to
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mix.”). Mildred Loving herself, one of the plaintiffs in Loving, saw the parallel between her
situation and that of same-sex couples. Martha C. Nussbaum, From Disgust to Humanity: Sexual Orientation and the Constitution 140 (Oxford University Press 2010) (quoting Mildred Loving as stating that “[t]he majority believed . . . that it was God’s plan to keep people apart and that the government should discriminate against people in love” but that she believes that “all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry”). Although amici may believe that a particular sex is more “essential” to marriage than a particular race, this may reveal nothing more than amici’s own views about what seems familiar and natural. Cf. John Stuart Mill and Harriet Taylor Mill, “The Subjection of Women,” included in John Stuart Mill, On Liberty and Other Writings 129 (Stefan Collini ed., Cambridge University Press 1989) (“Was there ever any domination which did not appear natural to those who possessed it?”).
Even if I assume that amici are correct that the condemnation against miscegenation was not as “universal” as it has been against same-sex marriage, the logical conclusion of amici’s argument suggests that the Supreme Court would have been compelled to uphold bans on interracial marriage if the opposition to them had been even stronger or more consistent. Of course, the Court’s holding in Loving did not rest on a “loophole” that interracial marriage had been legal in some places during some times.
A second flaw in defendants’ argument is that it is circular and would allow a state
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to exclude a group from exercising a right simply by manipulating a definition. Civil marriage is a legal construct, not a biological rule of nature, so it can be and has been changed over the years; there is nothing “impossible” about defining marriage to include same-sex couples, as has been demonstrated by the decisions of a number countries and states to do just that.
Amici say that opposite-sex marriage reflects “biological and social realities,” Amici’s Br., dkt. #109, at 3, but they do not explain what that means. To the extent amici are referring again to procreation, I have discussed that issue above and need not address it again. To the extent they are referring to stereotypically masculine and feminine roles that men and women traditionally have held in marriage, that is not a legitimate basis for limiting the scope of the right. United States v. Virginia, 518 U.S. 515, 541-42 (1996) (“State actors may not rely on overbroad generalizations [about the sexes] to make judgments about people that are likely to perpetuate historical patterns of discrimination.”); Goodridge, 798 N.E.2d at 965 n.28 (rejecting argument “that men and women are so innately and fundamentally different that their respective ‘proper spheres’ can be rigidly and universally delineated”). Although the Supreme Court has acknowledged that there are “[i]nherent differences between men and women,” the state may not rely on those differences to impose “artificial constraints on an individual's opportunity.” Virginia, 518 U.S. at 533-34. I see no reason why that principle should apply any differently in the context of marriage. Accordingly, I conclude that the right to marry protected by the Constitution includes samesex couples.
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2. Significant interference The next question under Zablocki is whether Wisconsin “significantly interferes” with
plaintiffs’ right to marry. It seems obvious that it does because Wisconsin law prohibits plaintiffs from entering a marriage relationship that will be meaningful for them. Id. at 40304 (Stevens, J., concurring) (“A classification based on marital status is fundamentally different from a classification which determines who may lawfully enter into the marriage relationship.”). Cf. Perez v. Lippold,198 P.2d 17, 25 (Cal. 1948) (under anti-miscegenation law, “[a] member of any of these races may find himself barred by law from marrying the person of his choice and that person to him may be irreplaceable”). Even defendants do not suggest that marrying someone of the opposite sex is a viable option for plaintiffs. Thus, the practical effect of the law is to impose an absolute ban on marriage for plaintiffs. Varnum v. Brien, 763 N.W.2d 862, 885 (Iowa 2009) (“[T]he right of a gay or lesbian person under the marriage statute to enter into a civil marriage only with a person of the opposite sex is no right at all” because it would require that person to “negat[e] the very trait that defines gay and lesbian people as a class.”); Andrew Sullivan, Virtually Normal 44 (Vintage Books 1995)(ban on same-sex relationships bars gay persons “from the act of the union with another” that many believe “to be intrinsic to the notion of human flourishing in the vast majority of human lives”).
Neither defendants nor amici argue that domestic partnerships, which are available to both same-sex and opposite-sex couples under Wis. Stat. chapter 770, are an adequate substitute for marriage, such that the marriage ban does not “significantly interfere” with
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plaintiffs’ rights, so I need not consider that question. However, most courts considering the issue have found that domestic partnerships and civil unions do not cure the constitutional injury because, even if the tangible benefits of a domestic partnership are similar to marriage, creating a “separate but equal” institution still connotes a second-class status. E.g., Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 994 (N.D. Cal. 2010); Varnum, 763 N.W.2d at 906-07; Kerrigan v. Commissioner of Public Health, 957 A.2d 407, 412 (Conn. 2008); Marriage Cases, 183 P.3d at 445 (Cal. 2008); Opinions of the Justices, 802 N.E.2d at 571. But see Sevcik, 911 F. Supp. 2d at 1015 (“The State has not crossed the constitutional line by maintaining minor differences in civil rights and responsibilities that are not themselves fundamental rights comprising the constitutional component of the right to marriage, or by reserving the label of ‘marriage’ for one-man-one-woman couples in a culturally and historically accurate way.”).
The only issue raised by defendants about the significance of the state’s interference relates to the plaintiffs who were married legally in other states. Defendants say that Wisconsin law does not interfere with those plaintiffs’ marriage rights because Wisconsin has done nothing to invalidate their marriages or to deprive them of benefits that they could receive from the state where they were married.
This argument is bewildering. Defendants acknowledge that Wisconsin “refuses to recognize same-sex marriages lawfully contracted in other jurisdictions,” Dfts.’ Br., dkt. #102, at 29, which means that the plaintiffs married in other states are deprived of any state rights, protections or benefits related to marriage so long as they reside in Wisconsin. I have
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no difficulty concluding that such a deprivation qualifies as “significant interference” under Zablocki. De Leon, 975 F. Supp. 2d 632 (holding that state’s refusal to recognize out-ofstate marriage interferes with plaintiffs’ right to marry); Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013) (same). See also Baskin v. Bogan, 1:14-CV-00355-RLY, 2014 WL 1814064 (S.D. Ind. May 8, 2014) (granting preliminary injunction on claim that state's refusal to recognize out-of-state marriage interferes with plaintiffs' right to marry).
In sum, I conclude that Wisconsin’s marriage amendment and the Wisconsin statutes defining marriage as requiring a “husband” and a “wife” significantly interfere with plaintiffs’ right to marry, so the laws must be supported by “sufficiently important state interests” that are “closely tailored to effectuate only those interests,” Zablocki, 434 U.S. at 388, in order to survive constitutional scrutiny. However, because this case is likely to be appealed, before I consider the state’s asserted interests for these laws, I will consider plaintiffs’ alternative argument that they are entitled to heightened protection under the equal protection clause, in the event the Court of Appeals for the Seventh Circuit disagrees with my conclusion regarding the scope of plaintiffs’ rights under the due process clause.
B. Equal Protection In addition to placing limits on state deprivations of individual liberty, the Fourteenth Amendment says that no state may “deny to any person within its jurisdiction the equal protection of the laws.” The equal protection clause “require[s] the state to treat each person with equal regard, as having equal worth, regardless of his or her status.” Nabozny
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v. Podlesny, 92 F.3d 446, 456 (7th Cir. 1996). Stated another way, it “requires the democratic majority to accept for themselves and their loved ones what they impose on you and me.” Cruzan by Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 300 (1990) (Scalia, J. concurring). “Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.” Railway Express Agency v. People of State of New York, 336 U.S. 106, 112-13 (1949) (Jackson, J., concurring).
Although the text of the equal protection clause does not distinguish among different groups or classes, the Supreme Court has applied different standards of review under the clause, depending on the type of classification at issue. Most classifications “must be upheld against [an] equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” FCC v. Beach Commcations, Inc., 508 U.S. 307, 313 (1993). Generally, under a rational basis review, the state has “no obligation to produce evidence” and “courts are compelled . . . to accept a legislature's generalizations even when there is an imperfect fit between means and ends. A classification does not fail rational-basis review because it is not made with mathematical nicety or because in practice it results in some inequality.” Heller v. Doe by Doe, 509 U.S. 312, 320-21 (1993).
However, under some circumstances, the Supreme Court has applied a heightened standard of review. For “suspect” classifications, such as race, alienage and national origin, Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 313 & n.4 (1976), the court applies “strict scrutiny,” under which the government must show that the classification is
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“narrowly tailored” to achieve a “compelling” interest. Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701, 720 (2007). With respect to a small number of other classifications, such as sex and legitimacy (often referred to as “quasisuspect” classifications), the Court has applied what it calls intermediate scrutiny, under which the classifications must be “substantially related” to the achievement of an “important governmental objective.” Virginia, 518 U.S. at 524.
In this case, plaintiffs contend that some form of heightened scrutiny should apply because the marriage amendment discriminates on the basis of sex and sexual orientation. I will address both of these contentions in turn.
1. Sex discrimination Plaintiffs identify two theories of sex discrimination. The first is straightforward: if
each plaintiff was to choose a marriage partner of the opposite-sex, he or she would be permitted to marry in Wisconsin. Therefore, plaintiffs say, it is because of their sex that they cannot marry. Plaintiffs’ second theory is more nuanced and relies on the concept of sex stereotyping. In particular, plaintiffs say that Wisconsin’s ban on marriage between same-sex couples “perpetuates and enforces stereotypes regarding the expected and traditional roles of men and women, namely that men marry and create families with women, and women marry and create families with men.” Plts.’ Br., dkt. #71, at 18.
With respect to the first theory of sex discrimination, plaintiffs analogize their situation to the plaintiffs in Loving, who were prohibited from marrying because of the race
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of their partner. The state argued in Loving that the anti-miscegenation law was not discriminatory because it applied to both whites and blacks, but the Supreme Court rejected that argument, stating that “we deal with statutes containing racial classifications, and the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race.” Loving, 388 U.S. at 7-8. See also McLaughlin v. State of Florida, 379 U.S. 184, 191 (1964) (statute prohibiting interracial cohabitation is unconstitutional, even though it penalized both whites and blacks; “[j]udicial inquiry under the Equal Protection Clause . . . does not end with a showing of equal application among the members of the class defined by the legislation”). Plaintiffs argue that the same reasoning should apply in this case. In other words, plaintiffs believe that the same-sex marriage ban discriminates on the basis of sex, even though it applies equally to both men and women, because it draws a line according to sex.
In the first case resolved in favor of same-sex couples seeking to marry, the court adopted this theory, even though the plaintiffs had not argued it initially. Baehr v. Lewin, 852 P.2d 44, 60 (Haw. 1993). Since then, however, the sex discrimination theory has been rejected by most courts to consider it, even those ruling in favor of the plaintiffs on other grounds. E.g., Geiger v. Kitzhaber, 6:13-CV-01834-MC, 2014 WL 2054264, at *7 (D. Or. May 19, 2014); Latta, 2014 WL 1909999, at *15; Bishop, 962 F. Supp. 2d at 1286-87; Sevcik, 911 F. Supp. 2d at 1005; Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1098-99 (D. Haw. 2012); Griego v. Oliver, 2014-NMSC-003, 316 P.3d 865, 880; Kerrigan, 957 A.2d
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at 509; Marriage Cases, 183 P.3d at 438; Conaway v. Deane, 4932 A.2d 571, 601-02 (Md. 2007); Hernandez, 855 N.E.2d at 10-11. But see Kitchen, 961 F. Supp. at 1206 (“[T]he court finds that the fact of equal application to both men and women does not immunize Utah's Amendment 3 from the heightened burden of justification that the Fourteenth Amendment requires of state laws drawn according to sex.”); Perry v. Schwarzenegger, 704 F. Supp. 2d at 996 (“Sexual orientation discrimination can take the form of sex discrimination.”); Brause v. Bureau of Vital Statistics, 3AN-95-6562 CI, 1998 WL 88743, *6 (Alaska Super. Ct. Feb. 27, 1998) (“That this is a sex-based classification can readily be demonstrated: if twins, one male and one female, both wished to marry a woman and otherwise met all of the Code's requirements, only gender prevents the twin sister from marrying under the present law. Sex-based classification can hardly be more obvious.”).
Although the reasoning of the courts rejecting the theory has varied, the general view seems to be that a sex discrimination theory is not viable, even if the government is making a sex-based classification with respect to an individual, because the intent of the laws banning same-sex marriage is not to suppress females or males as a class. E.g., Sevcik, 911 F. Supp. 2d at 1005 (“[B]ecause it is homosexuals who are the target of the distinction here, the level of scrutiny applicable to sexual-orientation-based distinctions applies.”). In other words, courts view this theory as counterintuitive and legalistic, an attempt to “bootstrap” sexual orientation discrimination into a claim for sex discrimination.
With respect to plaintiffs’ second theory, there is support in the law for the view that sex stereotyping is a form of sex discrimination. Virginia, 518 U.S. at 541-42 (“State actors
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controlling gates to opportunity . . . may not exclude qualified individuals based on fixed notions concerning the roles and abilities of males and females.”) (internal quotations omitted); Price Waterhouse v. Hopkins, 490 U.S. 228, 250–51 (1989) (“[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matc[h] the stereotypes associated with their group.”). See also Doe by Doe v. City of Belleville, Illinois, 119 F.3d 563, 581 (7th Cir. 1997)(“A woman who is harassed . . . because [she] is perceived as unacceptably ‘masculine’ is harassed ‘because of’ her sex. . . . In the same way, a man who is harassed because . . . he exhibits his masculinity in a way that does not meet his coworkers' idea of how men are to appear and behave, is harassed ‘because of’ his sex.”) (citations omitted). But see Hamm v. Weyauwega Milk Products, Inc., 332 F.3d 1058, 1068 (7th Cir. 2003) (Posner, J., concurring) (“‘Sex stereotyping’ should not be regarded as a form of sex discrimination, though it will sometimes . . . be evidence of sex discrimination.”). Some commentators have argued that sexual orientation discrimination should be seen as the ultimate form of sex stereotyping because it is grounded in beliefs about appropriate gender roles, e.g., Sylvia A. Law, Homosexuality and the Social Meaning of Gender, 1988 Wis. L. Rev. 187 (1988), but plaintiffs have not cited any courts that have adopted that theory and I am not aware of any.
Plaintiffs’ arguments about sex discrimination are thought-provoking enough to have caught the interest of at least one Supreme Court justice. Oral argument, Hollingsworth v. Perry, No. 12-144, 2013 WL 1212745, at *13 (statement of Kennedy, J.) (“Do you believe [that a ban on same-sex marriage] can be treated as a gender-based classification? It's a
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difficult question that I've been trying to wrestle with it.”). However, neither the Supreme Court nor the Court of Appeals for the Seventh Circuit has embraced either theory asserted by plaintiffs. With respect to the first theory, the court of appeals assumed in a recent case that a sex-based classification may be permissible if it imposes comparable burdens on both sexes. Hayden ex rel. A.H. v. Greensburg Community School Corp., 743 F.3d 569, 581 (7th Cir. 2014) (“Sex-differentiated standards consistent with community norms may be permissible to the extent they are part of a comprehensive, evenly-enforced grooming code that imposes comparable burdens on both males and females alike.”). With respect to the second theory, the court has stated that there is “a considerable overlap in the origins of sex discrimination and homophobia,” but the court declined to “go so far” as “to conclude that anti-gay bias should, in fact, be understood as a form of sex discrimination.” Doe, 119 F.3d at 593 n.27. The Supreme Court has not discussed either theory as it relates to sexual orientation.
Because of the uncertainty in the law and because I am deciding the case in plaintiffs’ favor on other grounds, I decline to wade into this jurisprudential thicket at this time. However, the court of appeals’ statement that sex and sexual orientation are related provides some support for a view that, like sex discrimination, sexual orientation discrimination should be subjected to heightened scrutiny.
2. Sexual orientation discrimination a. Supreme Court guidance
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The Supreme Court has never decided explicitly whether heightened scrutiny should apply to sexual orientation discrimination. Lee v. Orr, 13-CV-8719, 2013 WL 6490577 n.1 (N.D. Ill. Dec. 10, 2013) (“[T]he Supreme Court has yet to expressly state the level of scrutiny that courts are to apply to claims based on sexual orientation.”). In Romer, 517 U.S. at 632, in which the Court invalidated a state constitutional amendment because it discriminated on the basis of sexual orientation, the Court ignored the question whether heightened scrutiny should apply, perhaps because it was unnecessary in light of the Court’s conclusion that the law in dispute “lack[ed] a rational relationship to legitimate state interests.” The Court did not discuss the standard of review in Windsor either.
Despite the lack of an express statement from the Supreme Court, some courts and commentators have argued that the Court’s analyses in Romer and especially Windsor require a conclusion that the Court, in practice, is applying a higher standard than rational basis. For example, in SmithKline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471, 480-81 (9th Cir. 2014), the court considered the standard of review to apply to sexual orientation discrimination in the context of jury selection. The court stated that “Windsor review is not rational basis review. In its words and its deed, Windsor established a level of scrutiny for classifications based on sexual orientation that is unquestionably higher than rational basis review. In other words, Windsor requires that heightened scrutiny be applied to equal protection claims involving sexual orientation.” Id. See also Evan Gerstmann, Same-Sex Marriage and the Constitution, 19 (2d ed. Cambridge University Press 2008) (“Some scholars, including this author, have argued that the Romer Court actually applied
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a level of scrutiny somewhat greater than rational basis review” because “[t]he Court seemed unusually skeptical of [the state’s] professed reasons” for [the law].”). This conclusion is consistent with Justice Scalia’s dissenting opinion in Windsor, 133 S.Ct. at 2706, in which he stated that “the Court certainly does not apply anything that resembles [the rational-basis] framework.”
In SmithKline, 740 F.3d at 981-83, the court of appeals relied on four factors to conclude that Windsor applied heightened scrutiny: (1) the Supreme Court did not consider “conceivable” justifications for the law not asserted by the defenders of the law; (2) the Court required the government to “justify” the discrimination; (3) the Court considered the harm that the law caused the disadvantaged group; and (4) the Court did not afford the law a presumption of validity. Finding all of these things inconsistent with rational basis review, the court of appeals concluded that the Supreme Court must have been applying some form of heightened scrutiny.
I agree with the court in SmithKline that the Supreme Court’s analysis in Windsor (as well as in Romer) had more “bite” than a rational basis review would suggest. In fact, in Justice O’Connor’s concurrence in Lawrence, 539 U.S. at 580, she acknowledged that the Court conducted “a more searching inquiry” in Romer than it had in the ordinary case applying rational basis review.
It may be that Windsor’s silence is an indication that the Court is on the verge of making sexual orientation a suspect or quasi-suspect classification. Cf. Frontiero v. Richardson, 411 U.S. 677, 683 (1973) (plurality opinion) (stating for first time that sex
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discrimination should receive heightened scrutiny and relying on previous case in which Court had “depart[ed] from a ‘traditional’ rational-basis analysis with respect to [a] sex-based classificatio[n]” but Court did not say expressly in previous case that it was applying heightened standard of review). Alternatively, it may be that Romer and Windsor suggest that “[t]he hard edges of the tripartite division have . . . softened,” and that the Court has moved “toward general balancing of relevant interests.” Cass Sunstein, Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 4, 77 (1996). However, in the absence of a clear statement from the Court regarding the standard of review it was applying, it is difficult to rely on those cases as authority for applying heightened scrutiny to sexual orientation discrimination. Accordingly, I will consider next whether the Court of Appeals for the Seventh Circuit has provided definitive guidance.
b. Guidance from the Court of Appeals for the Seventh Circuit Defendants argue that circuit precedent prohibits this court from applying heightened
scrutiny, but I disagree. In Ben–Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir.1989), the court of appeals applied rational basis review to a law banning gays in the military, but in Nabozny, 92 F.3d at 457-58, the court stated that Ben-Shalom’s holding was limited to the military context. This makes sense in light of the general rule that courts must be more deferential to the government in matters of national security. E.g., Rostker v. Goldberg, 453 U.S. 57, 68 (1981) (upholding sex-based classification in military context). In Nabozny, a case involving allegations that school officials failed to protect a student from harassment
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because of a perception that he was gay, the court stated that it “need not consider whether homosexuals are a suspect or quasi-suspect class” because, viewing the facts in the light most favorable to the plaintiff as required on a motion for summary judgment, the defendants’ actions lacked any rational basis. Id. at 458.
Since Nabozny, the court of appeals has not engaged in any further analysis of the question whether sexual orientation discrimination should be subjected to heightened scrutiny. In Schroeder v. Hamilton School District, 282 F.3d 946, 950-51 (7th Cir. 2002), the court stated that “homosexuals do not enjoy any heightened protection under the Constitution,” but that statement was dicta because the court did not rely on the standard of review to decide the case. Instead, the court held that the plaintiff had failed to prove that the defendants treated him less favorably because of his sexual orientation. Schroeder, 282 F.3d at 956 (“Schroeder failed to demonstrate that the defendants treated his complaints of harassment differently from those lodged by non-homosexual teachers, that they intentionally discriminated against him, or acted with deliberate indifference to his complaints because of his homosexuality.”).
“[D]ictum is not authoritative. It is the part of an opinion that a later court, even if it is an inferior court, is free to reject.” United States v. Crawley, 837 F.2d 291, 292 (7th Cir. 1988). As a general rule, district courts should be guided by the views of the court of appeals or the Supreme Court, even when those views are expressed in dicta, Reich v. Continental Casualty Co., 33 F.3d 754, 757 (7th Cir.1994), but, when dicta is not supported by reasoning, its persuasive force is greatly diminished. Sutton v. A.O. Smith Co.,
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165 F.3d 561, 564 (7th Cir.1999); Wilder v. Apfel, 153 F.3d 799, 803 (7th Cir. 1998); Indiana Harbor Belt Railroad Co. v. American Cyanamid Co., 916 F.2d 1174, 1176 (7th Cir. 1990). In Schroeder, the court did not provide any reasoning for its conclusion that sexual orientation discrimination is not entitled to heightened scrutiny; instead the court simply cited Romer, 517 U.S. at 634-35, which did not address the issue, and Bowers, 478 U.S. at 196, which was overruled a year after Schroeder in Lawrence. Cf. Kerrigan, 957 A.2d at 468 (2008) (concluding that sexual orientation discrimination is subject to heightened scrutiny, despite case law to contrary, because those cases “rely so heavily on Bowers”). Accordingly, I conclude that Schroeder does not resolve the question of the appropriate standard of review to apply to discrimination against gay persons.
c. Factors relevant to determining status as suspect or quasi-suspect class Because neither the Supreme Court nor the Court of Appeals for the Seventh Circuit
has provided definitive guidance on whether sexual orientation discrimination requires heightened scrutiny, I must make that determination on my own. Other courts making the same determination have identified four factors that the Supreme Court has discussed, often in dicta, as relevant to the analysis: (1) whether the class has been subjected to a history of discrimination, Murgia, 427 U.S. at 313; (2) whether individuals in the class are able to contribute to society to the same extent as others, Cleburne, 473 U.S. at 440–41; (3) whether the characteristic defining the class is “immutable,” Lyng v. Castillo, 477 U.S. 635, 638 (1986); and (4) whether the class is “politically powerless.” Bowen v. Gilliard, 483 U.S.
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587, 602 (1987). But see Virginia, 518 U.S. at 568 (Scalia, J., dissenting) (“We have no established criterion for ‘intermediate scrutiny’ either, but essentially apply it when it seems like a good idea to load the dice.”). Since Windsor, all the courts to consider the issue have concluded that each of the factors applies to sexual orientation discrimination. E.g., Whitewood v. Wolf, 1:13-CV-1861, — F. Supp. 2d — , 2014 WL 2058105, at *14 (M.D. Pa. May 20, 2014); De Leon, 975 F. Supp. 2d at 650-51; Bassett v. Snyder, 951 F. Supp. 2d 939, 960 (E.D. Mich. 2013).
Defendants do not challenge plaintiffs’ contentions that gay persons have been subjected to a history of discrimination and that sexual orientation does not impair an individual’s ability to contribute to society, so I see no reason to repeat the analyses of the many courts that have reached the same conclusion. E.g., Windsor v. United States, 699 F.3d 169, 182 (2d Cir. 2012); De Leon , 975 F. Supp. 2d at 650-51; Pedersen v. Office of Personnel Management, 881 F. Supp. 2d 294, 316 (D. Conn. 2012); Golinski v. U.S. Office of Personnel Management, 824 F. Supp. 2d 968, 986 (N.D. Cal. 2012); Perry, 704 F.Supp.2d at 1002; Varnum, 763 N.W.2d at 889; Kerrigan, 957 A.2d at 435 (2008). In fact, I am not aware of any cases in which a court concluded that being gay hinders an individual’s ability to contribute to society.
With respect to immutability, defendants do not directly challenge the view that it applies to sexual orientation, but instead argue in a footnote that the authorities plaintiffs cite do not support their position. Dfts.’ Br., dkt. #102, at 40 n.10. With respect to political powerlessness, defendants deny that it applies to gay persons, pointing to various
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statutes in Wisconsin and around the country that prohibit sexual orientation discrimination in contexts other than marriage, such as employment. Dfts.’ Br., dkt. #102, at 40-41. In addition, they cite public opinion polls suggesting that attitudes about homosexuality have become more positive in recent years. Most courts concluding that sexual orientation discrimination is not subject to heightened scrutiny have relied on a similar argument about political power. E.g., Sevcik, 911 F. Supp. 2d at 1008 (“[The political success] the homosexual-rights lobby has achieved . . . indicates that the group has great political power. . . . In 2012 America, anti-homosexual viewpoints are widely regarded as uncouth.”).
I disagree with defendants that heightened scrutiny is inappropriate, either because of any doubts regarding whether sexual orientation is “immutable” or because of any political successes gay persons have had. In applying the four factors to a new class, it is important to consider the underlying reasons for applying heightened scrutiny and to look at the classes that already receive heightened scrutiny to see how the factors apply to them.
With respect to immutability, the Supreme Court has applied heightened scrutiny to discrimination on the basis of alienage, e.g., In re Griffiths, 413 U.S. 717 (1973); Sugarman v. Dougall, 413 U.S. 634 (1973); Graham v. Richardson, 403 U.S. 365 (1971), even though aliens can become citizens. Sugarman, 413 U.S. at 657 (Rehnquist, J., dissenting) (“[T]here is a marked difference between a status or condition such as illegitimacy, national origin, or race, which cannot be altered by an individual and the ‘status' [that can be] changed by . . . affirmative acts.”). The Court also applies heightened scrutiny to discrimination on the basis of religion, e.g., Larson v. Valente, 456 U.S. 228 (1982), even though religion is
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something that a person chooses. (Although most religious discrimination claims arise under the First Amendment, it is likely that the same standard would apply under the equal protection clause. Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687, 715 (1994) (O'Connor, J., concurring) (“[T]he Religion Clauses—the Free Exercise Clause, the Establishment Clause, the Religious Test Clause, Art. VI, cl. 3, and the Equal Protection Clause as applied to religion—all speak with one voice on this point: Absent the most unusual circumstances, one's religion ought not affect one's legal rights or duties or benefits.”).) Even a person’s gender is not written in stone. E.g., Glenn v. Brumby, 724 F. Supp. 2d 1284, 1289 (N.D. Ga. 2010) (discussing process leading up to sex reassignment surgery).
Rather than asking whether a person could change a particular characteristic, the better question is whether the characteristic is something that the person should be required to change because it is central to a person’s identity. Of course, even if one could change his or her race or sex with ease, it is unlikely that courts (or virtually anyone else) would find that race or sex discrimination is any more acceptable than it is now.
In Lawrence, 539 U.S. at 577, the Supreme Court found that sexual expression is “an integral part of human freedom” and is entitled to constitutional protection, which supports a conclusion that the law may not require someone to change his or her sexual orientation. Further, sexual orientation has been compared to religion on the ground that both “often simultaneously constitut[e] or infor[m] a status, an identity, a set of beliefs and practices, and much else besides.” Christian Legal Society Chapter of the University of California,
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Hastings College of the Law v. Martinez, 561 U.S. 661, 130 S. Ct. 2971, 2995 n.1 (2010) (Stevens, J., concurring). See also Martha Nussbaum, From Disgust to Humanity: Sexual Orientation & Constitutional Law 39 (Oxford University Press 2010) (like religion, sexual orientation “goes to the heart of people’s self-definition, their search for identity and selfexpression”). For this reason, I agree with those courts that have concluded that, regardless whether sexual orientation is “immutable,” it is “fundamental to a person's identity,” De Leon, 975 F. Supp. 2d at 651, which is sufficient to meet this factor. Bassett, 951 F. Supp. 2d at 960; Griego, 316 P.3d at 884.
With respect to political powerlessness, it seems questionable whether it is really a relevant factor. When the Supreme Court has mentioned political power, it has been only to include it in a list of other reasons for denying a request for heightened scrutiny. E.g., Bowen, 483 U.S. at 603; Cleburne, 473 U.S. at 445; Murgia, 427 U.S. 307 at 313–14. Defendants cite no case in which the Supreme Court has determined that it is a dispositive factor. On a practical level, it would be challenging to apply because it would suggest that classes could fall in and out of protected status depending on some undetermined level of political success, an idea for which the Court has never even hinted support. Regents of University of California v. Bakke, 438 U.S. 265, 298 (1978) (opinion of Powell, J.) (rejecting view that equal protection clause should be “hitch[ed] . . . to . . . transitory considerations [that] vary with the ebb and flow of political forces”).
Perhaps most telling is that almost none of the classifications that receive heightened scrutiny, including race or sex, could satisfy this factor if the test were whether the group has
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had any political success. Marriage Cases, 183 P.3d at 443. Particularly because discrimination against white citizens is subjected to strict scrutiny, e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), it is difficult to understand why a group’s political power should be determinative.
To the extent that “political powerlessness” is an appropriate factor, I conclude that the question is best framed as whether the class is inherently vulnerable in the context of the ordinary political process, either because of its size or history of disenfranchisement. In light of the fact that gay persons make up only a small percentage of the population and that there is no dispute that they have been subjected to a history of discrimination, I have no difficulty in concluding that sexual orientation meets this factor as well. Windsor, 699 F.3d at 184; Pedersen, 881 F. Supp. 2d at 332.
In any event, a review of the various classifications that receive heightened scrutiny (race, sex, alienage, legitimacy) reveals a common factor among them, which is that the classification is seldom “relevant to the achievement of any legitimate state interest.” Cleburne, 473 U.S. at 440. Under these circumstances, the classification is more likely “to reflect prejudice and antipathy,” so courts should be more suspicious of the discrimination. Id. See also Pedersen, 881 F. Supp. 2d at 319 (“The ability to contribute to society has played a critical and decisive role in Supreme Court precedent both denying and extending recognition of suspect class to other groups.”). Neither defendants nor amici offer an argument that sexual orientation would not meet that standard.
Accordingly, I conclude that sexual orientation discrimination is subject to heightened
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scrutiny. The Supreme Court has not explained how to distinguish a “suspect” classification from a “quasi-suspect” classification, but sexual orientation is most similar to sex among the different classifications that receive heightened protection, Doe, 119 F.3d at 593 n. 27. Because sex discrimination receives intermediate scrutiny and the difference between intermediate scrutiny and strict scrutiny is not dispositive in this case, I will assume that intermediate scrutiny applies, which means that defendants must show that Wisconsin’s laws banning marriage between same-sex couples must be “substantially related” to the achievement of an “important governmental objective,” Virginia, 518 U.S. at 524, to survive scrutiny under the equal protection clause.
3. Other considerations relevant to the standard of review In cases involving both suspect classes as well as other groups of people, the Supreme
Court has taken into account the nature and severity of the deprivation at issue, particularly when it seems to threaten principles of equal citizenship or imposes a stigma on a particular class. Cleburne, 473 U.S. at 448 (striking down law that restricted where mentally disabled, a nonsuspect class, could live); Plyler v. Doe, 457 U.S. 202, 223-24, (1982) (in equal protection case involving nonsuspect class’s access to public education, noting that “[p]ublic education is not a ‘right’ granted to individuals by the Constitution. But neither is it merely some governmental ‘benefit’ indistinguishable from other forms of social welfare legislation” and that, as a result of a denial of education, the“[t]he stigma of illiteracy will mark [the uneducated children] for the rest of their lives”); Brown, 347 U.S. at 494 (segregation
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“generates a feeling of inferiority as to [black students’] status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”). See also Cleburne, 473 U.S. at 460 (Marshall, J., concurring in the judgment in part and dissenting in part) (“I have long believed the level of scrutiny employed in an equal protection case should vary with the constitutional and societal importance of the interest adversely affected and the recognized invidiousness of the basis upon which the particular classification is drawn.”). This focus on stigma and equal citizenship makes sense because one purpose of the equal protection clause is to prohibit “stigmatizing members of the disfavored group as ‘innately inferior’ and therefore as less worthy participants in the political community.” Heckler v. Mathews, 465 U.S. 728, 739 (1984).
The Supreme Court’s focus on the nature and severity of the deprivation is particularly apparent in its more recent cases touching on sexual orientation. In Romer, 517 U.S. at 627, 629, 631, 635, the Court noted that the state constitutional amendment at issue (which prohibited municipalities from enacting ordinances that banned sexual orientation discrimination) imposed “severe consequence[s],” “special disabilit[ies]” and “immediate, continuing, and real injuries” on gay persons and no one else and that the amendment “put [them] in a solitary class with respect to transactions and relations in both the private and governmental spheres.” The Court contrasted the challenged law with differential treatment the Court had upheld in the past regarding economic activities such as advertising and operating a pushcart. Id. at 632. In part because of the nature of the harm, the Court concluded that the state law amounted to “class legislation” and “a
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classification of persons undertaken for its own sake.” Id. at 635. The Court quoted the famous dissenting opinion by Justice Harlan in Plessy v. Ferguson, 163 U.S. 537, 559 (1896), for the proposition that the Constitution “neither knows nor tolerates classes among citizens.” Id. at 623.
Although the Supreme Court did not decide Lawrence under the equal protection clause, it continued to use similar language. For example, the Court noted that the sodomy law at issue “demeans the lives of homosexual persons,” “invit[es] . . . discrimination [against gay persons] both in the public and in the private spheres” and “imposes” a “stigma” on them. Lawrence, 539 U.S. at 575.
Finally, in Windsor, 133 S. Ct. at 2693, the Supreme Court concluded that, by denying federal benefits to same-sex couples married under the laws of a particular state, the “practical effect [was] to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.” The Court repeated the theme of stigma and second-class status multiple times. Id. at 2694 (DOMA “tells [same-sex] couples [married under state law], and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects.”); id. at 2696 (“DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others.”); id. (effect of DOMA is to treat some persons as “living in marriages less respected
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than others.”). Throughout the decision, the Court emphasized that DOMA imposes a disability on same-sex couples, demeans them, violates their dignity and lowers their status. Id. at 2692, 2695.
Although the Court did not explain in Romer, Lawrence or Windsor how these considerations affected the standard of review, it seems clear that they were important to the decisions. Thus, even if one assumes that same-sex marriage does not fall within the right recognized in Loving and other cases, this does not mean that courts may ignore the nature and severity of the deprivation that a ban imposes on those couples.
Of course, the tangible benefits that marriage provides a couple are numerous. However, many would argue that the intangible benefits of marriage are equally important, if not more so. Recognizing this, some courts have found that the denial of marriage rights to same-sex couples necessarily is a denial of equal citizenship. E.g., Goodridge, 798 N.E.2d at 948. Others have concluded that the significance of the deprivation must be incorporated into the standard of review. Baker, 744 A.2d at 884 (“The legal benefits and protections flowing from a marriage license are of such significance that any statutory exclusion must necessarily be grounded on public concerns of sufficient weight, cogency, and authority that the justice of the deprivation cannot seriously be questioned.”). I agree with both conclusions.
In sum, I conclude that Wisconsin’s marriage amendment and the other laws at issue are subject to heightened scrutiny under both the due process clause and the equal protection clause. First, because I have concluded that the marriage ban significantly
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interferes with plaintiffs’ right to marry under the due process clause, defendants must show that the ban furthers “sufficiently important state interests” that are “closely tailored to effectuate only those interests.” Zablocki, 434 U.S. at 388. With respect to the equal protection clause, the marriage ban is subject to intermediate scrutiny because the ban discriminates on the basis of sexual orientation. In addition, the nature and severity of the deprivation is a relevant factor that must be considered. However, regardless whether I apply strict scrutiny, intermediate scrutiny or some “more searching” form of rational basis review under the equal protection clause, I conclude that the marriage amendment and related statutes cannot survive constitutional review.
III. EVALUATING THE ASSERTED STATE INTERESTS The final question is whether defendants have made an adequate showing that the Wisconsin laws prohibiting same-sex marriage further a legitimate interest. Defendants and amici rely on several interests in their briefs: (1) preserving tradition; (2) encouraging procreation generally and “responsible” procreation in particular; (3) providing an environment for “optimal child rearing”; (4) protecting the institution of marriage; (5) proceeding with caution; and (6) helping to maintain other legal restrictions on marriage. These interests are essentially the same as those asserted by other states in other cases around the country involving similar laws. Defendants’ asserted interests also overlap substantially with the interests asserted in Windsor by the proponents of the Defense of Marriage Act. Brief on the Merits for
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Respondent the Bipartisan Legal Advisory Group of the U.S. House of Representatives, United States of America v. Windsor, No. 12-307, 2013 WL 267026 (citing interests in “providing a stable structure to raise unintended and unplanned offspring,” “encouraging the rearing of children by their biological parents” and “promoting childrearing by both a mother and a father”). However, the Supreme Court did not consider these interests individually, even though the dissenting justices relied on them. Id. at 2718 (Alito, J., dissenting). Instead, the Court stated that “no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.” Id. at 2696. This is similar to the approach the Court took in Loving, 388 U.S. at 11 (“There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification.”).
The Court’s silence raises the question whether its refusal to credit the interests asserted by the defenders of DOMA requires the same approach in this case. On its face, Windsor does not apply to state law bans on marriage between same-sex couples. Windsor, 133 S. Ct. at 2696 (limiting its holding to denial of federal benefits of same-sex couples married under state law); Kitchen, 961 F. Supp. 2d at 1194 (“The Windsor court did not resolve this conflict in the context of state-law prohibitions of same-sex marriage.”). However, as noted by Justice Scalia in his dissent, it is difficult to cabin the Court’s reasoning to DOMA only. Windsor, 133 S. Ct. at 2709-10. If anything, the Court’s concerns about the “second-class status” imposed by DOMA on same-sex couples would be more pronounced by a total denial of the right to marry than by the “second-tier” marriages
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at issue in Windsor that provided state but not federal benefits. Further, although Windsor involved a federal law rather than a state law, I am not aware of any other case in which the Court applied equal protection principles differently to state and federal government. Buckley v. Valeo, 424 U.S. 1, 93 (1976) (“Equal protection analysis [with respect to the federal government] in the Fifth Amendment area is the same as that under the Fourteenth Amendment [with respect to the states.]”). This may be the reason why all federal courts reviewing a ban on same-sex marriage since Windsor have concluded that the ban is unconstitutional.
Defendants say that Windsor is distinguishable, arguing that the Supreme Court relied on the “unusual character” of the discrimination at issue in that case, just as the Court did in Romer. In Windsor, 133 S. Ct. at 2693, the Court stated that DOMA was unusual because it departed from the federal government’s ordinary practice of deferring to the states on marriage issues. In Romer, 517 U.S. at 632 the Court relied on the “sheer breadth” of the discriminatory law.
Although defendants are correct that the facts in this case are not the same as Windsor or Romer, there is a colorable argument that Wisconsin’s marriage amendment is “unusual” in other ways. First, the amendment represents a rare, if not unprecedented, act of using the Wisconsin Constitution to restrict constitutional rights rather than expand them and to require discrimination against a particular class. Cf. Akhil Amar, America’s Unwritten Constitution 451, 453 (Basic Books 2012) (“[An amendment] to restrict the equality rights of same-sex couples should be viewed with special skepticism because the
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amendmen[t] would do violence to the trajectory of the American constitutional project over the past two hundred years. . . . [Such an] illiberal amendment would be [a] radical departur[e] from our national narrative thus far.”). Particularly because Wisconsin statutory law already limited marriage to opposite-sex couples, Phillips v. Wisconsin Personnel Commission, 167 Wis. 2d 205, 482 N.W.2d 121, 129 (Ct. App.1992), enshrining the ban in the state constitution seems to suggest that the amendment had a moral rather than practical purpose.
Second, like the constitutional amendment at issue in Romer, Wisconsin’s ban on same-sex marriage (a) implicates a right “taken for granted by most people”; and (b) is sweeping in scope, denying same-sex couples hundreds of derivative rights that married couples have and excluding same-sex couples “from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society.” Id. at 631.
Although there is support for a view that Windsor is controlling in this case, I need not resolve that question. Even if I assume that Wisconsin’s ban on same-sex marriage is not “unusual” in the same sense as the laws at issue in Romer and Windsor, I conclude that defendants have failed to show that the ban furthers a legitimate state interest.
A. Tradition Both defendants and amici defend Wisconsin’s same-sex marriage ban on the ground of tradition. Defendants say that “[t]he traditional view of marriage—between a man and woman . . . —has been recognized for millennia.” Dfts.’ Br., dkt. #102, at 45. Amici go
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even further to state that “virtually all cultures through time” have recognized marriage “as the union of an opposite-sex couple.” Amici’s Br., dkt. #109, at 3-4.
As an initial matter, defendants and amici have overstated their argument. Throughout history, the most “traditional” form of marriage has not been between one man and one woman, but between one man and multiple women, which presumably is not a tradition that defendants and amici would like to continue. Stephanie Coontz, Marriage, a History 10 (2005) (“Polygyny, whereby a man can have multiple wives, is the marriage form found in more places and at more times than any other.”).
Nevertheless, I agree with amici’s more general view that tradition can be important because it often “reflects lessons of experience.” Amici’s Br., dkt. #109, at 7. For this reason, courts should take great care when reviewing long-standing laws to consider what those lessons of experience show. However, it is the reasons for the tradition and not the tradition itself that may provide justification for a law. Griego, 316 P.3d at 871-72 (“[L]egislation must advance a state interest that is separate and apart from the classification itself.”); Kerrigan, 957 A.2d at 478-79 (“[W]hen tradition is offered to justify preserving a statutory scheme that has been challenged on equal protection grounds, we must determine whether the reasons underlying that tradition are sufficient to satisfy constitutional requirements.”). Otherwise, the state could justify a law simply by pointing to it. Varnum, 763 N.W.2d at 898 (“When a certain tradition is used as both the governmental objective and the classification to further that objective, the equal protection analysis is transformed into the circular question of whether the classification accomplishes the governmental
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objective, which objective is to maintain the classification.”); Hernandez v. Robles, 805 N.Y.S.2d 354, 382 (2005) (Saxe, J., dissenting) (“Employing the reasoning that marriage must be limited to heterosexuals because that is what the institution has historically been, merely justifies discrimination with the bare explanation that it has always been this way.”). Like moral disapproval, tradition alone proves nothing more than a state’s desire to prohibit particular conduct. Lawrence, 539 U.S. at 583 (O’Connor, J., concurring in the judgment); id. at 601-02 (Scalia, J., dissenting) (“‘[P]reserving the traditional institution of marriage’ is just a kinder way of describing the State's moral disapproval of same-sex couples.”).
Although many venerable practices are part of American history, there are darker traditions as well, which later generations have rejected as denials of equality. For example, “[r]ote reliance on historical exclusion as a justification . . . would have served to justify slavery, anti-miscegenation laws and segregation.” Hernandez v. Robles, 794 N.Y.S.2d 579, 609 (Sup. Ct. 2005). Similarly, women were deprived of many opportunities, including the right to vote, for much of this country’s history, often because of “traditional” beliefs about women’s abilities. E.g., Bradwell v. People of State of Illinois, 83 U.S. 130, 141-42 (1872) (Bradley, J., concurring in the judgment) (“[T]he civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. . . .The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator.”). With respect to marriage in particular, there was a time when “the very being or legal existence of [a] woman [was] suspended” when she married. William Blackstone, Commentaries, Vol. I, 442-45 (1765).
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In the 1870's, Elizabeth Cady Stanton went so far as to argue that marriage at that time was “slavery” for women because they were required to forfeit so many rights. Jason Pierceson, Same-Sex Marriage in the United States 41 (Rowman & Littlefield 2013).
The rejection of these inequalities by later generations shows that sometimes a tradition may endure because of unexamined assumptions about a particular class of people rather than because the laws serve the community as a whole. Compare Dronenburg v. Zech, 741 F.2d 1388, 1398 (D.C. Cir. 1984) (“[C]ommon sense and common experience demonstrate” that gay officers in military “are almost certain to be harmful to morale and discipline.”), with Jim Garamone, “Don’t Ask, Don't Tell’ Repeal Certified by President Obama,” American Forces Press Service (July 22, 2011), available at http://www.defense.gov/news/newsarticle.aspx?id=64780 (visited June 6, 2014) (“The President, the chairman of the Joint Chiefs of Staff, and [the Secretary of Defense] have certified that the implementation of repeal of [restrictions on gay persons in the military] is consistent with the standards of military readiness, military effectiveness, unit cohesion and recruiting and retention of the armed forces.”). For this reason, the Supreme Court has stated that the “[a]ncient lineage of a legal concept does not give it immunity from attack for lacking a rational basis,” Heller v. Doe, 509 U.S. 312, 326 (1993), and it has “not hesitated to strike down an invidious classification even though it had history and tradition on its side.” Levy v. Louisiana, 391 U.S. 68, 71 (1968). Thus, if blind adherence to the past is the only justification for the law, it must fail. Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897) (“It is revolting to have no better reason for a rule of law than that
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. . . it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.”).
B. Procreation Perhaps the most common defense for restricting marriage to opposite-sex couples is that procreation is the primary purpose of marriage and that same-sex couples cannot procreate with each other. E.g., Dean, 1992 WL 685364 (ban on same-sex marriage justified by state’s interest in “fostering, at a socially-approved point in time (i.e. during marriage), that which is essential to the very survival of the human race, namely, procreation”). See also Kandu, 315 B.R. at 147; Standhardt v. Superior Court ex rel. County of Maricopa, 77 P.3d 451, 462 (Ariz. Ct. App. 2003); Adams, 486 F. Supp. at 1124-25; Singer, 522 P.2d at 1195; Baker, 191 N.W.2d at 187. A more recent twist on this argument is that marriage is needed to help opposite-sex couples procreate “responsibly,” but same-sex couples do not have the same need. Morrison v. Sadler, 821 N.E.2d 15, 27 (Ind. Ct. App. 2005). Defendants and amici repeat these arguments. One problem with the procreation rationale is that defendants do not identify any reason why denying marriage to same-sex couples will encourage opposite-sex couples to have children, either “responsibly” or “irresponsibly.” Geiger, 2014 WL 2054264, at *13; Bishop, 962 F. Supp. 2d. at 1291. Defendants say that this argument “misses the point” because “[t]he focus under rational-basis review is whether the challenged statute rationally supports
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a State interest, not whether expanding the class of beneficiaries to marriage would harm the State’s interest.” Dfts.’ Br., dkt. #102, at 65-66 (citing Johnson v. Robison, 415 U.S. 361, 383 (1974) (classification will be upheld under rational basis review if “the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not”)). In other words, defendants seem to concede that they have no reason to believe that marriage between same-sex couples will have an adverse effect on procreation between opposite-sex couples; however, preferential treatment for opposite-sex couples is permissible because they “need” marriage to better insure that they will stay together after procreation and same-sex couples do not need such assistance because they do not procreate “accidentally.”
As defendants acknowledge implicitly by citing Johnson, 415 U.S. 361, this argument is contingent on applying the most deferential standard of review. Because I have concluded that Wisconsin’s laws banning same-sex marriage are subject to heightened scrutiny under both the due process clause and the equal protection clause, this argument is a nonstarter. Defendants identify no other situation in which a right could be denied to a class of citizens simply because of a perception by the state that the class “doesn’t need” the right as much as another class. Treating such a fundamental right as just another government benefit that can be offered or withheld at the whim of the state is an indicator either that defendants fail to appreciate the implications for equal citizenship that the right to marry has or that they do not see same-sex couples as equal citizens. Cf. John Stuart Mill, “The Subjection of Women,” included in Classics of Moral and Political Theory 1145 (Michael Morgan ed., 5th
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ed. 2011) (“[T]here are many persons for whom it is not enough that the inequality has no just or legitimate defence; they require to be told what express advantage would be obtained by abolishing it. To which let me first answer, the advantage of having the most universal and pervading of all human relations regulated by justice instead of injustice.”).
Further, despite the popularity of this argument in courts in other states, it is difficult to believe that Wisconsin voters and legislators were willing to go to the great effort of adopting a constitutional amendment that excluded a class of citizens from marriage simply because the voters and legislators believed that same-sex couples were so stable and responsible that marriage was unnecessary for them. Even setting aside the standard of review, “the breadth of the amendment is so far removed from th[is] particular justificatio[n] that [I] find it impossible to credit.” Romer, 517 U.S. at 635 (interest in “conserving resources to fight discrimination against other groups” did not justify amendment permitting sexual orientation discrimination).
There is a second problem with the procreation rationale. As other courts have noted, an argument relying on procreation raises an obvious question: if the reason same-sex couples cannot marry is that they cannot procreate, then why are opposite-sex couples who cannot or will not procreate allowed to marry? E.g., Baskin, 2014 WL 1568884, at *3; De Leon, 975 F. Supp. 2d at 655. Wisconsin law does not restrict the marriages of opposite-sex couples who are sterile or beyond the age of procreation and it does not require marriage applicants to make a “procreation promise” in exchange for a license.
Defendants do not address this problem, but amici offer two responses. First, amici
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say that “it would be difficult (if not impossible), and certainly inappropriately intrusive, to determine ahead of time which couples are fertile.” Amici Br., dkt. #109, at 12. Second, they quote Morrison, 821 N.E.2d at 27, for the proposition that a “reasonable legislative classification is not to be condemned merely because it is not framed with such mathematical nicety as to include all within the reason of the classification and to exclude all others.” Id. at 13. See also Baker, 191 N.W.2d at 187 (making same arguments); Adams, 486 F. Supp. at 1124-25 (same).
Neither argument is persuasive. First, amici’s argument that it would be “difficult (if not impossible)” to attempt to determine a couple’s ability or willingness to procreate is simply inaccurate. Amici identify no reason that the state could not require applicants for a marriage license to certify that they have the intent to procreate and are not aware of any impediments to their doing so. In fact, Wisconsin already does inquire into the fertility of some marriage applicants, though in that case it requires the couple to certify that they are not able to procreate, which itself is proof that Wisconsin sees value in marriages that do not produce children and is applying a double standard to same-sex couples. Wis. Stat. § 765.03(1) (permitting first cousins to marry if “the female has attained the age of 55 years or where either party, at the time of application for a marriage license, submits an affidavit signed by a physician stating either party is permanently sterile”). To the extent amici mean to argue that an inquiry into fertility would be inappropriately intrusive because opposite-sex married couples have a constitutional right not to procreate under Griswold, that argument supports a view that the same right must be extended to same-sex couples as well. Cf.
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Eisenstadt, 405 U.S. at 453 (denying access to contraception on basis of marital status violates equal protection clause).
Like defendants’ argument regarding “responsible procreation,” amici’s alternative argument that “mathematical certainty is not required” is contingent on a rational basis review, which I have rejected. Further, this rationale is suspicious not just because Wisconsin has failed to ban infertile couples from marrying or to require intrusive tests to get a marriage license. Rather, it is suspicious because neither defendants nor amici cite any instances in which Wisconsin has ever taken any legal action to discourage infertile couples from marrying. There is also little to no stigma attached to childless married couples. Neither defendants nor amici point to any social opprobrium directed at the many millions of such couples throughout this country’s history, beginning with America’s first family, George and Martha Washington, who had no biological children of their own. http://en.wikipedia.org/wiki/George_Washington (visited June 6, 2014). The lack of any attempts by the state to dissuade infertile persons from marriage is proof that marriage is about many things, including love, companionship, sexual intimacy, commitment, responsibility, stability and procreation and that Wisconsin respects the decisions of its heterosexual citizens to determine for themselves how to define their marriage. If Wisconsin gives opposite-sex couples that autonomy, it must do the same for same-sex couples.
C. Optimal Child Rearing
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Defendants argue that “[s]ocial science data suggests that traditional marriage is optimal for families.” Dfts.’ Br., dkt. #102, at 52 (citing articles). Amici make a similar argument that the state has a valid interest in encouraging “the rearing of children by a mother and father in a family unit once they are born.” Amici Br., dkt. #109, at 13. See also Kandu, 315 B.R. at 146 (“[T]he promotion of marriage to encourage the maintenance of stable relationships that facilitate to the maximum extent possible the rearing of children by both of their biological parents is a legitimate congressional concern.”).
This argument harkens back to objections to interracial marriage made by the state in Loving. Brief for Respondents at 47–52, Loving v. Virginia, 388 U.S. 1 (1967), 1967 WL 113931 (“Inasmuch as we have already noted the higher rate of divorce among the intermarried, is it not proper to ask, ‘Shall we then add to the number of children who become the victims of their intermarried parents?’”). Further, it seems to be inconsistent with defendants’ previous argument. On one hand, defendants argue that same-sex couples do not need marriage because they can raise children responsibly without it. On the other hand, defendants argue that same-sex couples should not be raising children at all.
The substance of defendants’ and amici’s argument has been seriously questioned by both experts and courts. E.g., Golinski., 824 F. Supp. 2d at 991 (citing evidence that “it is ‘beyond scientific dispute’ that same-sex parents are equally capable at parenting as opposite-sex parents”); Perry, 704 F. Supp. 2d at 1000 (“The evidence does not support a finding that California has an interest in preferring opposite-sex parents over same-sex parents. Indeed, the evidence shows beyond any doubt that parents' genders are irrelevant
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to children's developmental outcomes.”); Charlotte Patterson, Children of Lesbian and Gay Parents: Summary of Research Findings, cited in Same-Sex Marriage: Pro and Co 240 (Andrew Sullivan ed., Vintage Book 2004) (finding no adverse effects on children of samesex parents). However, I need not resolve this sociological debate because, even if I assume that children fare better with two biological parents, this argument cannot carry the day for defendants for four reasons.
First, this is another incredibly underinclusive rationale. Defendants point to no other restrictions that the state places on marriage in an attempt to optimize outcomes for children. Marriage applicants in Wisconsin do not have to make any showing that they will make good parents or that they have the financial means to raise a child. A felon, an alcoholic or even a person with a history of child abuse may obtain a marriage license. Again, the state’s singular focus on banning same-sex marriage as a method of promoting good parenting calls into question the sincerity of this asserted interest. Romer, 517 U.S. at 635.
Second, even if being raised by two biological parents provides the “optimal” environment on average, this would not necessarily justify a discriminatory law. Under heightened scrutiny, the government may “not rely on overbroad generalizations about the different talents, capacities, or preferences of” different groups. Virginia, 518 U.S. at 533 (state violated equal protection clause by denying women admission to military college, despite evidence that college’s “adversative method” was less suitable for women on average).
Third, with or without marriage rights, some same-sex couples will raise children
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together, as they have been doing for many years. Thus, the most immediate effect that the same-sex marriage ban has on children is to foster less than optimal results for children of same-sex parents by stigmatizing them and depriving them of the benefits that marriage could provide. Goodridge, 798 N.E.2d at 963-64 (“Excluding same-sex couples from civil marriage . . . prevent[s] children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of a stable family structure in which children will be reared, educated, and socialized.”) (internal quotations omitted). Cf. Windsor, 133 S. Ct. at, 2694 (DOMA “humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”). The state’s failure to consider the interests of part of the very group it says it means to protect is further evidence of the law’s invalidity. Plyler, 457 U.S. at 223-24 (“In determining the rationality of [law restricting some children’s access to public schools], we may appropriately take into account its costs to the Nation and to the innocent children who are its victims.”).
Finally, and perhaps most important, defendants do not explain how banning samesex marriage helps to insure that more children are raised by an opposite-sex couple. I agree with the courts that see no way that it could. DeBoer, 973 F. Supp. 2d at 770-71; De Leon, 975 F. Supp. 2d at 653; Bourke, 2014 WL 556729, at *8. Defendants do not suggest that it would be rational to believe that the same-sex marriage ban causes any gay person to abandon his or her sexual orientation and enter an opposite-sex marriage for the purpose of
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procreating or that, even if the ban had such an effect, the situation would be beneficial for the child in the long run. Although it might be rational to believe that some same-sex couples would forgo raising children without the benefits and protections afforded by marriage, that result would not lead to more children being raised by opposite-sex couples; rather, it simply would mean that fewer children would be born or more would be left unadopted. Not surprisingly, neither defendants nor amici argue that not being born at all or being a ward of the state is preferable to being raised by a same-sex couple. Accordingly, Wisconsin’s ban on marriage between same-sex couples cannot be justified on the ground that it furthers optimal results for children.
D. Protecting the Institution of Marriage Both defendants and amici express concerns about the effect that allowing same-sex couples to marry could have on the institution of marriage as a whole. Defendants say that “[r]eshaping social norms about marriage could have harmful effects,” such as “shifting the public understanding of marriage away from a largely child-centric institution to an adultcentric institution focused on emotion.” Dfts.’ Br., dkt. #102 at 57. They analogize samesex marriage to no-fault divorce laws, which defendants say led to an increase in divorce rates and generally made marriages “fragile and often unreliable.” Id. (quoting Sandra Blakeslee, Unexpected Legacy of Divorce 297 (New York: Hyperion, 2000)). In addition, defendants quote an article in which the author argues that, if marriage between same-sex couples is legalized, “[t]he confusion of social roles linked with marriage and parenting would be
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tremendous.” Id. at 58 (quoting Lynn Wardle, “Multiply and Replenish”: Considering Same–Sex Marriage in Light of State Interests in Marital Procreation, 24 Harv. J.L. & Pub. Pol'y 771, 799 (2001)). Amici make a similar argument, stating that allowing same-sex marriage risks “psycho-social inversion of the purpose of marriage from promoting children’s interests to promoting adult arrangements in which children are secondary.” Amici Br., dkt. #109, at 8.
As an initial matter, it is not clear whether the Supreme Court would view this interest as even legitimate. In Windsor, 133 S. Ct. at 2693, the Court concluded that Congress’ stated purpose to “defend” marriage from same-sex couples was evidence that the purpose of DOMA was to “interfer[e] with the equal dignity of same-sex marriages” and therefore improper. Similarly, in Loving, 388 U.S. at 8, 11, the Court stated that there was “patently no legitimate overriding purpose” for a ban on interracial marriage despite an argument that “the scientific evidence is substantially in doubt” about the effect that interracial marriage would have on society. Certainly, to the extent that defendants or amici are concerned about the erosion of strict gender roles in marriage, that is a sexist belief that the state has no legitimate interest in furthering. Virginia, 518 U.S. at 541.
In addition, this interest suffers from the same problem of underinclusiveness as the other asserted interests. Two strangers of the opposite sex can marry regardless of their intentions, without any demonstration or affirmation of the example they will set, even if they have been previously divorced or have a history of abusing the institution. Similarly, the no-fault divorce rules that defendants cite actually undermine their argument by showing
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that Wisconsin already supports an “adult-centric” notion of marriage to some extent by allowing easy divorce even when the couple has children. Coontz, supra, at 274 (excluding same-sex couples from marriage after liberalizing heterosexual marriages and relationships in other ways is “a case of trying to lock the barn door after the horses have already gone”).
In any event, neither defendants nor amici cite any evidence or even develop a cogent argument to support their belief that allowing same-sex couples to marry somehow will lead to the de-valuing of children in marriage or have some other adverse effect on the marriages of heterosexual couples. Thus, it is doubtful whether defendants’ belief even has a rational basis. Cf. Doe, 403 F. Supp. at 1205 (Merhige, J., dissenting) (“To suggest, as defendants do, that the prohibition of homosexual conduct will in some manner encourage new heterosexual marriages and prevent the dissolution of existing ones is unworthy of judicial response. In any event, what we know as men is not forgotten as judges— it is difficult to envision any substantial number of heterosexual marriages being in danger of dissolution because of the private sexual activities of homosexuals.”).
Under any amount of heightened scrutiny, this interest undoubtedly fails. The available evidence from other countries and states does not support defendants’ and amici’s argument. Nussbaum, supra, at 145 (states that allow marriage between same-sex couples have lower divorce rates than other states); Gerstmann, supra, at 22 (citing findings of economics professor M.V. Lee Badgett that same-sex partnerships in Europe have not led to lower rates of marriage, higher rates of divorce or higher rates of nonmarital births as compared to countries that do not offer legal recognition); William N. Eskridge, Jr. and
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Darren Spedale, Gay Marriage: For Better or Worse? 205 (Oxford University Press 2006) (discussing study finding that percentage of children being raised by two parents in Scandinavia increased after registered partnership laws took effect).
E. Proceeding with Caution Defendants say that the “Wisconsin people and their political representatives could rationally choose to wait and analyze the impact that changing marriage laws have had in other states before deviating from the status quo.” Dfts.’ Br., dkt. #102, at 46. However, that argument is simply a restatement of defendants’ argument that they are concerned about potential adverse effects that marriage between same-sex couples might have, so I need not consider it again. In itself, a desire to make a class of people wait to exercise constitutional rights is not a legitimate interest. Watson v. Memphis, 373 U.S. 526, 532–533 (1963) (“The basic guarantees of our Constitution are warrants for the here and now and, unless there is an overwhelmingly compelling reason, they are to be promptly fulfilled.”). See also Martin Luther King, Jr., Letter from Birmingham Jail (“For years now I have heard the word ‘Wait!’ It rings in the ear of every Negro with piercing familiarity. This ‘Wait’ has almost always meant ‘Never.’”); Evan Wolfson, Why Marriage Matters 121 (Simon & Schuster 2004) (quoting state senator’s statement after Goodridge, 798 N.E.2d 941) (“Goodridge is ahead of our mainstream culture and our own sensibilities [but] my level of comfort is not the appropriate monitor of the Constitutional rights of our citizens. . . . [The Constitution] has always required us to reach beyond our moral and emotional
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grasp.”).
F. Slippery Slope Finally, defendants express concern about the legal precedent that allowing same-sex marriage will set. Dfts.’ Br., dkt. #102, at 55 (“Extending the fundamental right to marriage to include same-sex couples could affec[t] other legal restrictions and limitations on marriage.”). In other words, if same-sex couples are allowed to marry, then how can prohibitions on polygamy and incest be maintained? I make three observations in response to defendants’ concern about the slippery slope. First, and most important, the task of this court is to address the claim presented and not to engage in speculation about issues not raised that may or may not arise at some later time in another case. Socha v. Pollard, 621 F.3d 667, 670 (7th Cir. 2010) (“If [an] order represents a mere advisory opinion not addressed to resolving a ‘case or controversy,’ then it marks an attempted exercise of judicial authority beyond constitutional bounds.”). Thus, the important question for this case is not whether another individual’s marriage claim may be analogous to plaintiffs’ claim, but whether plaintiffs’ claim is like the claims raised in cases such as Loving, Zablocki, Turner and Windsor. I have concluded that it is. When the Supreme Court struck down the marriage restrictions in those other cases, it did not engage in hypothetical discussions about what might come next. See also Lewis v. Harris, 875 A.2d 259, 287-88 (N.J. Super. A.D. 2005) (Collester, J., dissenting) (“It is . . . unnecessary for us to consider here the question of the constitutional rights of polygamists to marry persons of
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their choosing. . . . One issue of fundamental constitutional rights is enough for now.”). Second, there are obvious differences between the justifications for the ban on same-
sex marriage and other types of marriage restrictions. For example, polygamy and incest raise concerns about abuse, exploitation and threats to the social safety net. A more fundamental point is that Wisconsin’s ban on same-sex marriage is different from other marriage restrictions because it completely excludes gay persons from participating in the institution of marriage in any meaningful sense. In other words, gay persons simply are asking for the right to marry someone. With the obvious exception of minors, no other class is being denied this right. As in Romer, plaintiffs are not asking for “special rights”; they are asking only for the rights that every adult already has.
Third, opponents of marriage between same-sex couples have been raising concerns about the slippery slope for many years, but these concerns have not proved well-founded. Again, there is no evidence from Europe that lifting the restriction on same-sex marriage has had an effect on other marriage restrictions related to age, consanguinity or number of partners. Eskridge and Spedale, supra, at 40. Similarly, in Vermont and Massachusetts, the first states to give legal recognition to same-sex couples, there has been no movement toward polygamy or incest. Further, I am aware of no court that even has questioned the validity of those restrictions. Marriage Cases, 183 P.3d at 434 n.52 (rejecting comparison to polygamy and incest); Goodridge, 798 N.E.2d at 969 n.34 (2003) (same). Accordingly, this interest, like all the others asserted by defendants and amici, does not provide a legitimate basis for discriminating against same-sex couples.
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CONCLUSION In 1954, in what likely was one of the first cases explicitly addressing issues involving gay persons, a federal district court denied a claim involving censorship of a gay news magazine, stating that the court “rejected” the “suggestion that homosexuals should be recognized as a segment of our people.” Joyce Murdoch and Deb Price, Courting Justice 33 (Basic Books 2002) (quoting unpublished decision in ONE, Inc. v. Oleson). In the decades that followed, both courts and the public began to better appreciate that the guarantees of liberty and equality in the Constitution should not be denied because of an individual’s sexual orientation. Despite these advances, marriage equality for same-sex couples remained elusive. Court rulings in favor of same-sex couples were rare and, even when achieved, they tended to generate strong backlash. Klarman, supra, at 58, 113 (noting that, after decision favorable to same-sex marriage in Baehr, 852 P.2d 44, Congress enacted Defense of Marriage Act and many states passed similar laws; in 2004, after Goodridge, 798 N.E.2d 941, eleven states passed constitutional amendments banning marriage between same-sex couples). In my view, that initial resistance is not proof of the lack of merit of those couples’ claims. Rather, it is evidence of Justice Cardozo’s statement (quoted by Justice Ginsburg during her confirmation hearing) that “[j]ustice is not to be taken by storm. She is to be wooed by slow advances.” Editorial, “Ginsburg’s Thoughtful Caution,” Chicago Tribune (July 22, 1993), available at 1993 WLNR 4096678. It took the Supreme Court nearly a century after the Fourteenth Amendment was enacted to hold that racial segregation violates the Constitution, a view that seems obvious today. It took another 12 years for the Court
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to strike down anti-miscegenation laws. (Although the Court had the opportunity to review Virginia’s anti-miscegenation law shortly after Brown, the Court declined to do so at the time, Naim v. Naim, 350 U.S. 985 (1956) (dismissing appeal), leading some to speculate that the Court believed that the issue was still too controversial. Eskridge and Spedale, supra, at 235.) It took longer still for courts to begin to remedy the country’s “long and unfortunate history of sex discrimination.” Frontiero, 411 U.S. at 684.
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%
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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.

IT IS ORDERED that

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1. The motion to dismiss filed by defendants Scott Walker, J.B. Van Hollen and Oskar Anderson, dkt. #66, is DENIED.
2. The motion for summary judgment filed by plaintiffs Virginia Wolf, Carol Schumacher, Kami Young, Karina Willes, Roy Badger, Garth Wangemann, Charvonne Kemp, Marie Carlson, Judith Trampf, Katharina Heyning, Salud Garcia, Pamela Kleiss, William Hurtubise, Leslie Palmer, Johannes Wallmann and Keith Borden, dkt. #70 is GRANTED.
3. It is DECLARED that art. XIII, § 13 of the Wisconsin Constitution violates plaintiffs’ fundamental right to marry and their right to equal protection of laws under the Fourteenth Amendment to the United States Constitution. Any Wisconsin statutory provisions, including those in Wisconsin Statutes chapter 765, that limit marriages to a “husband” and a “wife,” are unconstitutional as applied to same-sex couples.
4. Plaintiffs may have until June 16, 2014, to submit a proposed injunction that complies with the requirement in Fed. R. Civ. P. 65(d)(1)(C) to “describe in reasonable detail . . . the act or acts restrained or required.” In particular, plaintiffs should identify what they want each named defendant to do or be enjoined from doing. Defendants may have one week from the date plaintiffs file their proposed injunction to file an opposition. If defendants file an opposition, plaintiffs may have one week from that date to file a reply in support of their proposed injunction.
5. I will address defendants’ pending motion to stay the injunction after the parties have had an opportunity to file materials related to the proposed injunction. If the parties
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wish, they may have until June 16, 2014, to supplement their materials related to that motion in light of the Supreme Court’s decision in Geiger v. Kitzhaber not to grant a stay in that case.
Entered this 6th day of June, 2014. BY THE COURT: /s/ BARBARA B. CRABB District Judge
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 14-2386 to 14-2388
MARILYN RAE BASKIN, et al., Plaintiffs-Appellees,
v. PENNY BOGAN, et al.,
Defendants-Appellants. ____________________
Appeals from the United States District Court for the Southern District of Indiana, Indianapolis Division.
Nos. 1:14-cv-00355-RLY-TAB, 1:14-cv-00404-RLY-TAB, 1:14-cv-00406-RLY-MJD — Richard L. Young, Chief Judge.
____________________
No. 14-2526
VIRGINIA WOLF, et al., Plaintiffs-Appellees,
v. SCOTT WALKER, et al.,
Defendants-Appellants. ____________________
Appeal from the United States District Court for the Western District of Wisconsin.
No. 3:14-cv-00064-bbc — Barbara B. Crabb, Judge.
______________________

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ARGUED AUGUST 26, 2014 — DECIDED SEPTEMBER 4, 2014
____________________
Before POSNER, WILLIAMS, and HAMILTON, Circuit Judges.
POSNER, Circuit Judge. Indiana and Wisconsin are among the shrinking majority of states that do not recognize the validity of same-sex marriages, whether contracted in these states or in states (or foreign countries) where they are lawful. The states have appealed from district court decisions invalidating the states’ laws that ordain such refusal.
Formally these cases are about discrimination against the small homosexual minority in the United States. But at a deeper level, as we shall see, they are about the welfare of American children. The argument that the states press hardest in defense of their prohibition of same-sex marriage is that the only reason government encourages marriage is to induce heterosexuals to marry so that there will be fewer “accidental births,” which when they occur outside of marriage often lead to abandonment of the child to the mother (unaided by the father) or to foster care. Overlooked by this argument is that many of those abandoned children are adopted by homosexual couples, and those children would be better off both emotionally and economically if their adoptive parents were married.
We are mindful of the Supreme Court’s insistence that “whether embodied in the Fourteenth Amendment or inferred from the Fifth, equal protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices. In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld

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against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993) (emphasis added). The phrase we’ve italicized is the exception applicable to this pair of cases.
We hasten to add that even when the group discriminated against is not a “suspect class,” courts examine, and sometimes reject, the rationale offered by government for the challenged discrimination. See, e.g., Village of Willowbrook v. Olech, 528 U.S. 562 (2000) (per curiam); City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 448–50 (1985). In Vance v. Bradley, 440 U.S. 93, 111 (1979), an illustrative case in which the Supreme Court accepted the government’s rationale for discriminating on the basis of age, the majority opinion devoted 17 pages to analyzing whether Congress had had a “reasonable basis” for the challenged discrimination (requiring foreign service officers but not ordinary civil servants to retire at the age of 60), before concluding that it did.
We’ll see that the governments of Indiana and Wisconsin have given us no reason to think they have a “reasonable basis” for forbidding same-sex marriage. And more than a reasonable basis is required because this is a case in which the challenged discrimination is, in the formula from the Beach case, “along suspect lines.” Discrimination by a state or the federal government against a minority, when based on an immutable characteristic of the members of that minority (most familiarly skin color and gender), and occurring against an historical background of discrimination against the persons who have that characteristic, makes the discriminatory law or policy constitutionally suspect. See, e.g., Bowen v. Gilliard, 483 U.S. 587, 602–03 (1987); Regents of University

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of California v. Bakke, 438 U.S. 265, 360–62 (1978); St. John’s United Church of Christ v. City of Chicago, 502 F.3d 616, 638 (7th Cir. 2007); Wilkins v. Gaddy, 734 F.3d 344, 348 (4th Cir. 2013); Gallagher v. City of Clayton, 699 F.3d 1013, 1018–19 (8th Cir. 2012). These circumstances create a presumption that the discrimination is a denial of the equal protection of the laws (it may violate other provisions of the Constitution as well, but we won’t have to consider that possibility). The presumption is rebuttable, if at all, only by a compelling showing that the benefits of the discrimination to society as a whole clearly outweigh the harms to its victims. See, e.g., Grutter v. Bollinger, 539 U.S. 306, 326–27 (2003); United States v. Virginia, 518 U.S. 515, 531–33 (1996).
The approach is straightforward but comes wrapped, in many of the decisions applying it, in a formidable doctrinal terminology—the terminology of rational basis, of strict, heightened, and intermediate scrutiny, of narrow tailoring, fundamental rights, and the rest. We’ll be invoking in places the conceptual apparatus that has grown up around this terminology, but our main focus will be on the states’ arguments, which are based largely on the assertion that banning same-sex marriage is justified by the state’s interest in channeling procreative sex into (necessarily heterosexual) marriage. We will engage the states’ arguments on their own terms, enabling us to decide our brace of cases on the basis of a sequence of four questions:
1. Does the challenged practice involve discrimination, rooted in a history of prejudice, against some identifiable group of persons, resulting in unequal treatment harmful to them?

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2. Is the unequal treatment based on some immutable or at least tenacious characteristic of the people discriminated against (biological, such as skin color, or a deep psychological commitment, as religious belief often is, both types being distinct from characteristics that are easy for a person to change, such as the length of his or her fingernails)? The characteristic must be one that isn’t relevant to a person’s ability to participate in society. Intellect, for example, has a large immutable component but also a direct and substantial bearing on qualifications for certain types of employment and for legal privileges such as entitlement to a driver’s license, and there may be no reason to be particularly suspicious of a statute that classifies on that basis.
3. Does the discrimination, even if based on an immutable characteristic, nevertheless confer an important offsetting benefit on society as a whole? Age is an immutable characteristic, but a rule prohibiting persons over 70 to pilot airliners might reasonably be thought to confer an essential benefit in the form of improved airline safety.
4. Though it does confer an offsetting benefit, is the discriminatory policy overinclusive because the benefit it confers on society could be achieved in a way less harmful to the discriminated-against group, or underinclusive because the government’s purported rationale for the policy implies that it should equally apply to other groups as well? One way to decide whether a policy is overinclusive is to ask whether unequal treatment is essential to attaining the desired benefit. Imagine a statute that imposes a $2 tax on women but not men. The proceeds from that tax are, let’s assume, essential to the efficient operation of government. The tax is therefore socially efficient, and the benefits clearly

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outweigh the costs. But that’s not the end of the inquiry. Still to be determined is whether the benefits from imposing the tax only on women outweigh the costs. And likewise in a same-sex marriage case the issue is not whether heterosexual marriage is a socially beneficial institution but whether the benefits to the state from discriminating against same-sex couples clearly outweigh the harms that this discrimination imposes.
Our questions go to the heart of equal protection doctrine. Questions 1 and 2 are consistent with the various formulas for what entitles a discriminated-against group to heightened scrutiny of the discrimination, and questions 3 and 4 capture the essence of the Supreme Court’s approach in heightened-scrutiny cases: “To succeed, the defender of the challenged action must show ‘at least that the classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.’” United States v. Virginia, supra, 518 U.S. at 524 (1996), quoting Mississippi University for Women v. Hogan, 458 U.S. 718, 724 (1982).
The difference between the approach we take in these two cases and the more conventional approach is semantic rather than substantive. The conventional approach doesn’t purport to balance the costs and benefits of the challenged discriminatory law. Instead it evaluates the importance of the state’s objective in enacting the law and the extent to which the law is suited (“tailored”) to achieving that objective. It asks whether the statute actually furthers the interest that the state asserts and whether there might be some less burdensome alternative. The analysis thus focuses not on “costs” and “benefits” as such, but on “fit.” That is why the

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briefs in these two cases overflow with debate over whether prohibiting same-sex marriage is “over- or underinclusive”—for example, overinclusive in ignoring the effect of the ban on the children adopted by same-sex couples, underinclusive in extending marriage rights to other nonprocreative couples. But to say that a discriminatory policy is overinclusive is to say that the policy does more harm to the members of the discriminated-against group than necessary to attain the legitimate goals of the policy, and to say that the policy is underinclusive is to say that its exclusion of other, very similar groups is indicative of arbitrariness.
Although the cases discuss, as we shall be doing in this opinion, the harms that a challenged statute may visit upon the discriminated-against group, those harms don’t formally enter into the conventional analysis. When a statute discriminates against a protected class (as defined for example in our question 2), it doesn’t matter whether the harm inflicted by the discrimination is a grave harm. As we said, a statute that imposed a $2 tax on women but not men would be struck down unless there were a compelling reason for the discrimination. It wouldn’t matter that the harm to each person discriminated against was slight if the benefit of imposing the tax only on women was even slighter.
Our pair of cases is rich in detail but ultimately straightforward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction— that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously. To the extent that children are better off in families in

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which the parents are married, they are better off whether they are raised by their biological parents or by adoptive parents. The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subjected to heightened scrutiny, which is why we can largely elide the more complex analysis found in more closely balanced equal-protection cases.
It is also why we can avoid engaging with the plaintiffs’ further argument that the states’ prohibition of same-sex marriage violates a fundamental right protected by the due process clause of the Fourteenth Amendment. The plaintiffs rely on cases such as Hodgson v. Minnesota, 497 U.S. 417, 435 (1990), and Zablocki v. Redhail, 434 U.S. 374, 383–86 (1978), that hold that the right to choose whom to marry is indeed a fundamental right. The states reply that the right recognized in such cases is the right to choose from within the class of persons eligible to marry, thus excluding children, close relatives, and persons already married—and, the states contend, persons of the same sex. The plaintiffs riposte that there are good reasons for ineligibility to marry children, close relatives, and the already married, but not for ineligibility to marry persons of the same sex. In light of the compelling alternative grounds that we’ll be exploring for allowing samesex marriage, we won’t have to engage with the parties’ “fundamental right” debate; we can confine our attention to equal protection.
We begin our detailed analysis of whether prohibiting same-sex marriage denies equal protection of the laws by noting that Indiana and Wisconsin, in refusing to authorize such marriage or (with limited exceptions discussed later) to recognize such marriages made in other states by residents

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of Indiana or Wisconsin, are discriminating against homosexuals by denying them a right that these states grant to heterosexuals, namely the right to marry an unmarried adult of their choice. And there is little doubt that sexual orientation, the ground of the discrimination, is an immutable (and probably an innate, in the sense of in-born) characteristic rather than a choice. Wisely, neither Indiana nor Wisconsin argues otherwise. The American Psychological Association has said that “most people experience little or no sense of choice about their sexual orientation.” APA, “Answers to Your Questions: For a Better Understanding of Sexual Orientation & Homosexuality” 2 (2008), www.apa.org/topics/lgbt/orien tation.pdf (visited Sept. 2, 2014, as were the other websites cited in this opinion); see also Gregory M. Herek et al., “Demographic, Psychological, and Social Characteristics of SelfIdentified Lesbian, Gay, and Bisexual Adults in a US Probability Sample,” 7 Sexuality Research and Social Policy 176, 188 (2010) (“combining respondents who said they’d had a small amount of choice with those reporting no choice, 95% of gay men and 84% of lesbians could be characterized as perceiving that they had little or no choice about their sexual orientation”). That homosexual orientation is not a choice is further suggested by the absence of evidence (despite extensive efforts to find it) that psychotherapy is effective in altering sexual orientation in general and homosexual orientation in particular. APA, “Answers to Your Questions,” supra, at 3; Report of the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation 35–41 (2009).
The leading scientific theories of the causes of homosexuality are genetic and neuroendocrine theories, the latter being theories that sexual orientation is shaped by a fetus’s ex-

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posure to certain hormones. See, e.g., J. Michael Bailey, “Biological Perspectives on Sexual Orientation,” in Lesbian, Gay, and Bisexual Identities Over the Lifespan: Psychological Perspectives 102–30 (Anthony R. D’Augelli and Charlotte J. Patterson eds. 1995); Barbara L. Frankowski, “Sexual Orientation and Adolescents,” 113 Pediatrics 1827, 1828 (2004). Although it seems paradoxical to suggest that homosexuality could have a genetic origin, given that homosexual sex is nonprocreative, homosexuality may, like menopause, by reducing procreation by some members of society free them to provide child-caring assistance to their procreative relatives, thus increasing the survival and hence procreative prospects of these relatives. This is called the “kin selection hypothesis” or the “helper in the nest theory.” See, e.g., Association for Psychological Science, ”Study Reveals Potential Evolutionary Role for Same-Sex Attraction,” Feb. 4, 2010, www.psychologicalscience.org/media/releases/2010/vasey.cf m. There are other genetic theories of such attraction as well. See, e.g., Nathan W. Bailey and Marlene Zuk, “Same-Sex Sexual Behavior and Evolution,” forthcoming in Trends in Ecology and Evolution, www.faculty.ucr.edu/~mzuk/Bai ley%20and%20Zuk%202009%20Same%20sex%20behaviour. pdf. For a responsible popular treatment of the subject see William Kremer, “The Evolutionary Puzzle of Homosexuality,” BBC News Magazine, Feb. 17, 2014, www.bbc .com/news/magazine-26089486.
The harm to homosexuals (and, as we’ll emphasize, to their adopted children) of being denied the right to marry is considerable. Marriage confers respectability on a sexual relationship; to exclude a couple from marriage is thus to deny it a coveted status. Because homosexuality is not a voluntary condition and homosexuals are among the most stigmatized,

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misunderstood, and discriminated-against minorities in the history of the world, the disparagement of their sexual orientation, implicit in the denial of marriage rights to same-sex couples, is a source of continuing pain to the homosexual community. Not that allowing same-sex marriage will change in the short run the negative views that many Americans hold of same-sex marriage. But it will enhance the status of these marriages in the eyes of other Americans, and in the long run it may convert some of the opponents of such marriage by demonstrating that homosexual married couples are in essential respects, notably in the care of their adopted children, like other married couples.
The tangible as distinct from the psychological benefits of marriage, which (along with the psychological benefits) enure directly or indirectly to the children of the marriage, whether biological or adopted, are also considerable. In Indiana they include the right to file state tax returns jointly, Ind. Code § 6-3-4-2(d); the marital testimonial privilege, § 3446-3-1(4); spousal-support obligations, § 35-46-1-6(a); survivor benefits for the spouse of a public safety officer killed in the line of duty, § 36-8-8-13.8(c); the right to inherit when a spouse dies intestate, § 29-1-2-1(b), (c); custodial rights to and child support obligations for children of the marriage, and protections for marital property upon the death of a spouse. §§ 12-15-8.5-3(1); 12-20-27-1(a)(2)(A). Because Wisconsin allows domestic partnerships, some spousal benefits are available to same-sex couples in that state. But others are not, such as the right to adopt children jointly, Wis. Stat. § 48.82(1); spousal-support obligations, §§ 765.001(2), 766.15(1), 766.55; the presumption that all property of married couples is marital property, § 766.31(2); and state-

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mandated access to enrollment in a spouse’s health insurance plan, § 632.746(7).
Of great importance are the extensive federal benefits to which married couples are entitled: the right to file income taxes jointly, 26 U.S.C. § 6013; social security spousal and surviving-spouse benefits, 42 U.S.C. § 402; death benefits for surviving spouse of a military veteran, 38 U.S.C. § 1311; the right to transfer assets to one’s spouse during marriage or at divorce without additional tax liability, 26 U.S.C. § 1041; exemption from federal estate tax of property that passes to the surviving spouse, 26 U.S.C. § 2056(a); the tax exemption for employer-provided healthcare to a spouse, 26 U.S.C. § 106; Treas. Reg. § 1.106–1; and healthcare benefits for spouses of federal employees, 5 U.S.C. §§ 8901(5), 8905.
The denial of these federal benefits to same-sex couples brings to mind the Supreme Court’s opinion in United States v. Windsor, 133 S. Ct. 2675, 2694–95 (2013), which held unconstitutional the denial of all federal marital benefits to same-sex marriages recognized by state law. The Court’s criticisms of such denial apply with even greater force to Indiana’s law. The denial “tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. [No same-sex marriages are valid in Indiana.] This places same-sex couples in an unstable position of being in a second-tier marriage [in Indiana, in the lowest—the unmarried—tier]. The differentiation demeans the couple … [and] humiliates tens of thousands of children now being raised by same-sex couples. The law … makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with

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other families in their community and in their daily lives.” Id. at 2694.
The Court went on to describe at length the federal marital benefits denied by the Defense of Marriage Act to married same-sex couples. Of particular relevance to our two cases is the Court’s finding that denial of those benefits causes economic harm to children of same-sex couples. “It raises the cost of health care for families by taxing health benefits provided by employers to their workers’ same-sex spouses. And it denies or reduces benefits allowed to families upon the loss of a spouse and parent, benefits that are an integral part of family security. [The Act also] divests married same-sex couples of the duties and responsibilities that are an essential part of married life and that they in most cases would be honored to accept.” Id. at 2695 (citations omitted).
Of course there are costs to marriage as well as benefits, not only the trivial cost of the marriage license but also the obligations, such as alimony, that a divorcing spouse may be forced to bear. But those are among “the duties and responsibilities that are an essential part of married life and that [the spouses] in most cases would be honored to accept.” That marriage continues to predominate over cohabitation as a choice of couples indicates that on average the sum of the tangible and intangible benefits of marriage outweighs the costs.
In light of the foregoing analysis it is apparent that groundless rejection of same-sex marriage by government must be a denial of equal protection of the laws, and therefore that Indiana and Wisconsin must to prevail establish a clearly offsetting governmental interest in that rejection.

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Whether they have done so is really the only issue before us, and the balance of this opinion is devoted to it—except that before addressing it we must address the states’ argument that whatever the merits of the plaintiffs’ claims, we are bound by Baker v. Nelson, 409 U.S. 810 (1972) (mem.), to reject them. For there the Supreme Court, without issuing an opinion, dismissed “for want of a substantial federal question” an appeal from a state court that had held that prohibiting same-sex marriage did not violate the Constitution. Although even a decision without opinion is on the merits and so binds lower courts, the Supreme Court carved an exception to this principle of judicial hierarchy in Hicks v. Miranda, 422 U.S. 332, 344 (1975), for “when doctrinal developments indicate otherwise”; see also United States v. Blaine County, 363 F.3d 897, 904 (9th Cir. 2004); Soto-Lopez v. New York City Civil Service Commission, 755 F.2d 266, 272 (2d Cir. 1985). Baker was decided in 1972—42 years ago and the dark ages so far as litigation over discrimination against homosexuals is concerned. Subsequent decisions such as Romer v. Evans, 517 U.S. 620, 634–36 (1996); Lawrence v. Texas, 539 U.S. 558, 577– 79 (2003), and United States v. Windsor are distinguishable from the present two cases but make clear that Baker is no longer authoritative. At least we think they’re distinguishable. But Justice Scalia, in a dissenting opinion in Lawrence, 539 U.S. at 586, joined by Chief Justice Rehnquist and Justice Thomas, thought not. He wrote that “principle and logic” would require the Court, given its decision in Lawrence, to hold that there is a constitutional right to same-sex marriage. Id. at 605.
First up to bat is Indiana, which defends its refusal to allow same-sex marriage on a single ground, namely that government’s sole purpose (or at least Indiana’s sole purpose) in

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making marriage a legal relation (unlike cohabitation, which is purely contractual) is to enhance child welfare. Notably the state does not argue that recognizing same-sex marriage undermines conventional marriage.
When a child is conceived intentionally, the parents normally intend to raise the child together. But pregnancy, and the resulting birth (in the absence of abortion), are sometimes accidental, unintended; and often in such circumstances the mother is stuck with the baby—the father, not having wanted to become a father, refuses to take any responsibility for the child’s welfare. The sole reason for Indiana’s marriage law, the state’s argument continues, is to try to channel unintentionally procreative sex into a legal regime in which the biological father is required to assume parental responsibility. The state recognizes that some or even many homosexuals want to enter into same-sex marriages, but points out that many people want to enter into relations that government refuses to enforce or protect (friendship being a notable example). Government has no interest in recognizing and protecting same-sex marriage, Indiana argues, because homosexual sex cannot result in unintended births.
As for the considerable benefits that marriage confers on the married couple, these in the state’s view are a part of the regulatory regime: the carrot supplementing the stick. Marital benefits for homosexual couples would not serve the regulatory purpose of marital benefits for heterosexual couples because homosexual couples don’t produce babies.
The state’s argument can be analogized to requiring drivers’ licenses for drivers of motor vehicles but not for bicyclists. Motor vehicles are more dangerous to other users of the roads than bicycles are, and therefore a driver’s license is

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required to drive the former but not to pedal the latter. Bicyclists do not and cannot complain about not having to have a license to pedal, because obtaining, renewing, etc., the license would involve a cost in time and money. The analogy is not perfect (if it were, it would be an identity not an analogy) because marriage confers benefits as well as imposing costs, as we have emphasized (indeed it confers on most couples benefits greater than the costs). But those benefits, in Indiana’s view, would serve no state interest if extended to homosexual couples, who should therefore be content with the benefits they derive from being excluded from the marriage-licensing regime: the cost of the license and the burden of marital duties, such as support, and the costs associated with divorce. Moreover, even if possession of a driver’s license conferred benefits not available to bicyclists (discounts, or tax credits, perhaps), the state could argue that it offered these benefits only to induce drivers to obtain a license (the carrot supplementing the stick), and that bicyclists don’t create the same regulatory concern and so don’t deserve a carrot.
Another analogy: The federal government extends a $2000 “saver’s credit” to low- and middle-income workers who contribute to a retirement account. Although everyone would like a $2000 credit, only lower-income workers are entitled to it. Should higher-income workers complain about being left out of the program, the government could reply that only lower-income workers create a regulatory concern—the concern that they’d be unable to support themselves in retirement without government encouragement to save while they’re young.

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In short, Indiana argues that homosexual relationships are created and dissolved without legal consequences because they don’t create family-related regulatory concerns. Yet encouraging marriage is less about forcing fathers to take responsibility for their unintended children—state law has mechanisms for determining paternity and requiring the father to contribute to the support of his children—than about enhancing child welfare by encouraging parents to commit to a stable relationship in which they will be raising the child together. Moreover, if channeling procreative sex into marriage were the only reason that Indiana recognizes marriage, the state would not allow an infertile person to marry. Indeed it would make marriage licenses expire when one of the spouses (fertile upon marriage) became infertile because of age or disease. The state treats married homosexuals as would-be “free riders” on heterosexual marriage, unreasonably reaping benefits intended by the state for fertile couples. But infertile couples are free riders too. Why are they allowed to reap the benefits accorded marriages of fertile couples, and homosexuals are not?
The state offers an involuted pair of answers, neither of which answers the charge that its policy toward same-sex marriage is underinclusive. It points out that in the case of most infertile heterosexual couples, only one spouse is infertile, and it argues that if these couples were forbidden to marry there would be a risk of the fertile spouse’s seeking a fertile person of the other sex to breed with and the result would be “multiple relationships that might yield unintentional babies.” True, though the fertile member of an infertile couple might decide instead to produce a child for the couple by surrogacy or (if the fertile member is the woman) a sperm bank, or to adopt, or to divorce. But what is most un-

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likely is that the fertile member, though desiring a biological child, would have procreative sex with another person and then abandon the child—which is the state’s professed fear.
The state tells us that “non-procreating opposite-sex couples who marry model the optimal, socially expected behavior for other opposite-sex couples whose sexual intercourse may well produce children.” That’s a strange argument; fertile couples don’t learn about child-rearing from infertile couples. And why wouldn’t same-sex marriage send the same message that the state thinks marriage of infertile heterosexuals sends—that marriage is a desirable state?
It’s true that infertile or otherwise non-procreative heterosexual couples (some fertile couples decide not to have children) differ from same-sex couples in that it is easier for the state to determine whether a couple is infertile by reason of being of the same sex. It would be considered an invasion of privacy to condition the eligibility of a heterosexual couple to marry on whether both prospective spouses were fertile (although later we’ll see Wisconsin flirting with such an approach with respect to another class of infertile couples). And often the couple wouldn’t know in advance of marriage whether they were fertile. But then how to explain Indiana’s decision to carve an exception to its prohibition against marriage of close relatives for first cousins 65 or older—a population guaranteed to be infertile because women can’t conceive at that age? Ind. Code § 31-11-1-2. If the state’s only interest in allowing marriage is to protect children, why has it gone out of its way to permit marriage of first cousins only after they are provably infertile? The state must think marriage valuable for something other than just procreation— that even non-procreative couples benefit from marriage.

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And among non-procreative couples, those that raise children, such as same-sex couples with adopted children, gain more from marriage than those who do not raise children, such as elderly cousins; elderly persons rarely adopt.
Indiana has thus invented an insidious form of discrimination: favoring first cousins, provided they are not of the same sex, over homosexuals. Elderly first cousins are permitted to marry because they can’t produce children; homosexuals are forbidden to marry because they can’t produce children. The state’s argument that a marriage of first cousins who are past child-bearing age provides a “model [of] family life for younger, potentially procreative men and women” is impossible to take seriously.
At oral argument the state‘s lawyer was asked whether “Indiana’s law is about successfully raising children,” and since “you agree same-sex couples can successfully raise children, why shouldn’t the ban be lifted as to them?” The lawyer answered that “the assumption is that with oppositesex couples there is very little thought given during the sexual act, sometimes, to whether babies may be a consequence.” In other words, Indiana’s government thinks that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured (in the form of governmental encouragement of marriage through a combination of sticks and carrots) to marry, but that gay couples, unable as they are to produce children wanted or unwanted, are model parents—model citizens really—so have no need for marriage. Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce

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unwanted children; their reward is to be denied the right to marry. Go figure.
Which brings us to Indiana’s weakest defense of its distinction among different types of infertile couple: its assumption that same-sex marriage cannot contribute to alleviating the problem of “accidental births,” which the state contends is the sole governmental interest in marriage. Suppose the consequences of accidental births are indeed the state’s sole reason for giving marriage a legal status. In advancing this as the reason to forbid same-sex marriage, Indiana has ignored adoption—an extraordinary oversight. Unintentional offspring are the children most likely to be put up for adoption, and if not adopted, to end up in a foster home. Accidental pregnancies are the major source of unwanted children, and unwanted children are a major problem for society, which is doubtless the reason homosexuals are permitted to adopt in most states—including Indiana and Wisconsin.
It’s been estimated that more than 200,000 American children (some 3000 in Indiana and about the same number in Wisconsin) are being raised by homosexuals, mainly homosexual couples. Gary J. Gates, “LGBT Parenting in the United States” 3 (Williams Institute, UCLA School of Law, Feb. 2013), http://williamsinstitute.law.ucla.edu/wp-content/ uploads/lgbt-parenting.pdf; Gates, “Same-Sex Couples in Indiana: A Demographic Summary” (Williams Institute, UCLA School of Law, 2014), http://williamsinstitute.law.uc la.edu/wp-content/uploads/IN-same-sex-couples-demo-aug2014.pdf; Gates, “Same-Sex Couples in Wisconsin: A Demographic Survey” (Williams Institute, UCLA School of Law, Aug. 2014), http://williamsinstitute.law.ucla.edu/wp-conte

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nt/uploads/WI-same-sex-couples-demo-aug-2014.pdf. Gary Gates’s demographic surveys find that among couples who have children, homosexual couples are five times as likely to be raising an adopted child as heterosexual couples in Indiana, and two and a half times as likely as heterosexual couples in Wisconsin.
If the fact that a child’s parents are married enhances the child’s prospects for a happy and successful life, as Indiana believes not without reason, this should be true whether the child’s parents are natural or adoptive. The state’s lawyers tell us that “the point of marriage’s associated benefits and protections is to encourage child-rearing environments where parents care for their biological children in tandem.” Why the qualifier “biological”? The state recognizes that family is about raising children and not just about producing them. It does not explain why the “point of marriage’s associated benefits and protections” is inapplicable to a couple’s adopted as distinct from biological children.
Married homosexuals are more likely to want to adopt than unmarried ones if only because of the many state and federal benefits to which married people are entitled. And so same-sex marriage improves the prospects of unintended children by increasing the number and resources of prospective adopters. Notably, same-sex couples are more likely to adopt foster children than opposite-sex couples are. Gates, “LGBT Parenting in the United States,” supra, at 3. As of 2011, there were some 400,000 American children in foster care, of whom 10,800 were in Indiana and about 6500 in Wisconsin. U.S. Dept. of Health & Human Services, Children’s Bureau, “How Many Children Are in Foster Care in

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the U.S.? In My State?” www.acf.hhs.gov/programs/cb/faq/ foster-care4.
Also, the more willing adopters there are, not only the fewer children there will be in foster care or being raised by single mothers but also the fewer abortions there will be. Carrying a baby to term and putting the baby up for adoption is an alternative to abortion for a pregnant woman who thinks that as a single mother she could not cope with the baby. The pro-life community recognizes this. See, e.g., Students for Life of America, “Adoption, Another Option,” http://studentsforlife.org/resources/organize-an-event/adopt ion: “There may be times when a mother facing an unplanned pregnancy may feel completely unequipped to parent her child. She may feel her only option is to kill her preborn child. Pro-life individuals touch lives by helping women place their baby or child for adoption. It is important to show women on your campus that adoption can be the answer to all of her fears” (emphasis in original).
Consider now the emotional comfort that having married parents is likely to provide to children adopted by same-sex couples. Suppose such a child comes home from school one day and reports to his parents that all his classmates have a mom and a dad, while he has two moms (or two dads, as the case may be). Children, being natural conformists, tend to be upset upon discovering that they’re not in step with their peers. If a child’s same-sex parents are married, however, the parents can tell the child truthfully that an adult is permitted to marry a person of the opposite sex, or if the adult prefers as some do a person of his or her own sex, but that either way the parents are married and therefore the child can feel secure in being the child of a married couple. Con-

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versely, imagine the parents having to tell their child that same-sex couples can’t marry, and so the child is not the child of a married couple, unlike his classmates.
Indiana permits joint adoption by homosexuals (Wisconsin does not). But an unmarried homosexual couple is less stable than a married one, or so at least the state’s insistence that marriage is better for children implies. If marriage is better for children who are being brought up by their biological parents, it must be better for children who are being brought up by their adoptive parents. The state should want homosexual couples who adopt children—as, to repeat, they are permitted to do—to be married, if it is serious in arguing that the only governmental interest in marriage derives from the problem of accidental births. (We doubt that it is serious.)
The state’s claim that conventional marriage is the solution to that problem is belied by the state’s experience with births out of wedlock. Accidental pregnancies are found among married couples as well as unmarried couples, and among individuals who are not in a committed relationship and have sexual intercourse that results in an unintended pregnancy. But the state believes that married couples are less likely to abandon a child of the marriage even if the child’s birth was unintended. So if the state’s policy of trying to channel procreative sex into marriage were succeeding, we would expect a drop in the percentage of children born to an unmarried woman, or at least not an increase in that percentage. Yet in fact that percentage has been rising even since Indiana in 1997 reenacted its prohibition of same-sex marriage (thus underscoring its determined opposition to such marriage) and for the first time declared that it would

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not recognize same-sex marriages contracted in other states or abroad. The legislature was fearful that Hoosier homosexuals would flock to Hawaii to get married, for in 1996 the Hawaii courts appeared to be moving toward invalidating the state’s ban on same-sex marriage, though as things turned out Hawaii did not authorize such marriage until 2013.
In 1997, the year of the enactment, 33 percent of births in Indiana were to unmarried women; in 2012 (the latest year for which we have statistics) the percentage was 43 percent. The corresponding figures for Wisconsin are 28 percent and 37 percent and for the nation as a whole 32 percent and 41 percent. (The source of all these data is Kids Count Data Center, “Births to Unmarried Women,” http://datacenter. kidscount.org/data/tables/7-births-to-unmarried-women#det ailed/2/16,51/false/868,867,133,38,35/any/257,258.) There is no indication that these states’ laws, ostensibly aimed at channeling procreation into marriage, have had any such effect.
A degree of arbitrariness is inherent in government regulation, but when there is no justification for government’s treating a traditionally discriminated-against group significantly worse than the dominant group in the society, doing so denies equal protection of the laws. One wouldn’t know, reading Wisconsin’s brief, that there is or ever has been discrimination against homosexuals anywhere in the United States. The state either is oblivious to, or thinks irrelevant, that until quite recently homosexuality was anathematized by the vast majority of heterosexuals (which means, the vast majority of the American people), including by most Americans who were otherwise quite liberal. Homosexuals had, as homosexuals, no rights; homosexual sex was criminal

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(though rarely prosecuted); homosexuals were formally banned from the armed forces and many other types of government work (though again enforcement was sporadic); and there were no laws prohibiting employment discrimination against homosexuals. Because homosexuality is more easily concealed than race, homosexuals did not experience the same economic and educational discrimination, and public humiliation, that African-Americans experienced. But to avoid discrimination and ostracism they had to conceal their homosexuality and so were reluctant to participate openly in homosexual relationships or reveal their homosexuality to the heterosexuals with whom they associated. Most of them stayed “in the closet.” Same-sex marriage was out of the question, even though interracial marriage was legal in most states. Although discrimination against homosexuals has diminished greatly, it remains widespread. It persists in statutory form in Indiana and in Wisconsin’s constitution.
At the very least, “a [discriminatory] law must bear a rational relationship to a legitimate governmental purpose.” Romer v. Evans, supra, 517 U.S. at 635. Indiana’s ban flunks this undemanding test.
Wisconsin’s prohibition of same-sex marriage, to which we now turn, is found in a 2006 amendment to the state’s constitution. The amendment, Article XIII, § 13, provides: “Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.” Opponents of same-sex marriage in Indiana have tried for a number of years to insert a prohibition of such marriages into the state’s constitution, as yet without suc-

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cess. A number of large businesses in Indiana oppose such a constitutional amendment. With 19 states having authorized same-sex marriage, the businesses may feel that it’s only a matter of time before Indiana joins the bandwagon, and that a constitutional amendment would impede the process— and also would signal to Indiana’s gay and lesbian citizens, some of whom are employees of these businesses, that they are in a very unwelcoming environment, with statutory reform blocked. (On the attitude of business in Indiana and Wisconsin to same-sex marriage, see, e.g., Nick Halter, “Target Files Court Papers Supporting Same-Sex Marriage in Wisconsin and Indiana,” Aug. 5, 2014, www.bizjournals.com /twincities/news/2014/08/05/target-amicus-same-sex-marriag e-wisconsin-indiana.html.)
Wisconsin’s brief in defense of its prohibition of same-sex marriage adopts Indiana’s ground (“accidental births”) but does not amplify it. Its “accidental births” rationale for prohibiting same-sex marriage is, like Indiana’s, undermined by a “first cousin” exemption—but, as a statutory matter at least, an even broader one: “No marriage shall be contracted … between persons who are nearer of kin than 2nd cousins except that marriage may be contracted between first cousins where the female has attained the age of 55 years or where either party, at the time of application for a marriage license, submits an affidavit signed by a physician stating that either party is permanently sterile.” Wis. Stat. § 65.03(1). Indiana’s marriage law, as we know, authorizes first-cousin marriages if both cousins are at least 65 years old. But—and here’s the kicker—Indiana apparently will as a matter of comity recognize any marriage lawful where contracted, including therefore (as an Indiana court has held) marriages of first cousins contracted in Tennessee, a state that places no

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restrictions on such marriages. See Tenn. Code Ann. § 36-3101; Mason v. Mason, 775 N.E.2d 706, 709 (Ind. App. 2002). Indiana has not tried to explain to us the logic of recognizing marriages of fertile first cousins (prohibited in Indiana) that happen to be contracted in states that permit such marriages, but of refusing, by virtue of the 1997 amendment, to recognize same-sex marriages (also prohibited in Indiana) contracted in states that permit them. This suggests animus against same-sex marriage, as is further suggested by the state’s inability to make a plausible argument for its refusal to recognize same-sex marriage.
But back to Wisconsin, which makes four arguments of its own against such marriage: First, limiting marriage to heterosexuals is traditional and tradition is a valid basis for limiting legal rights. Second, the consequences of allowing same-sex marriage cannot be foreseen and therefore a state should be permitted to move cautiously—that is, to do nothing, for Wisconsin does not suggest that it plans to take any steps in the direction of eventually authorizing such marriage. Third, the decision whether to permit or forbid samesex marriage should be left to the democratic process, that is, to the legislature and the electorate. And fourth, same-sex marriage is analogous in its effects to no-fault divorce, which, the state argues, makes marriage fragile and unreliable—though of course Wisconsin has no-fault divorce, and it’s surprising that the state’s assistant attorney general, who argued the state’s appeal, would trash his own state’s law. The contention, built on the analogy to no-fault divorce and sensibly dropped in the state’s briefs in this court—but the assistant attorney general could not resist resuscitating it at the oral argument—is that, as the state had put it in submissions to the district court, allowing same-sex marriage cre-

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ates a danger of “shifting the public understanding of marriage away from a largely child-centric institution to an adult-centric institution focused on emotion.” No evidence is presented that same-sex marriage is on average less “childcentric” and more emotional than an infertile marriage of heterosexuals, or for that matter that no-fault divorce has rendered marriage less “child-centric.”
The state’s argument from tradition runs head on into Loving v. Virginia, 388 U.S. 1 (1967), since the limitation of marriage to persons of the same race was traditional in a number of states when the Supreme Court invalidated it. Laws forbidding black-white marriage dated back to colonial times and were found in northern as well as southern colonies and states. See Peggy Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America (2009). Tradition per se has no positive or negative significance. There are good traditions, bad traditions pilloried in such famous literary stories as Franz Kafka’s “In the Penal Colony” and Shirley Jackson’s “The Lottery,” bad traditions that are historical realities such as cannibalism, foot-binding, and suttee, and traditions that from a public-policy standpoint are neither good nor bad (such as trick-or-treating on Halloween). Tradition per se therefore cannot be a lawful ground for discrimination—regardless of the age of the tradition. Holmes thought it “revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.” Oliver Wendell Holmes, Jr., “The Path of the Law,” 10 Harv. L. Rev. 457, 469 (1897). Henry IV (the English Henry IV, not the French one—Holmes presumably was referring to the former) died in 1413. Criticism of homosexuality is far older. In Leviticus 18:22 we read that “thou shalt not lie with mankind, as with womankind: it is abomination.”

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The limitation on interracial marriage invalidated in Loving was in one respect less severe than Wisconsin’s law. It did not forbid members of any racial group to marry, just to marry a member of a different race. Members of different races had in 1967, as before and since, abundant possibilities for finding a suitable marriage partner of the same race. In contrast, Wisconsin’s law, like Indiana’s, prevents a homosexual from marrying any person with the same sexual orientation, which is to say (with occasional exceptions) any person a homosexual would want or be willing to marry.
Wisconsin points out that many venerable customs appear to rest on nothing more than tradition—one might even say on mindless tradition. Why do men wear ties? Why do people shake hands (thus spreading germs) or give a peck on the cheek (ditto) when greeting a friend? Why does the President at Thanksgiving spare a brace of turkeys (two out of the more than 40 million turkeys killed for Thanksgiving dinners) from the butcher’s knife? But these traditions, while to the fastidious they may seem silly, are at least harmless. If no social benefit is conferred by a tradition and it is written into law and it discriminates against a number of people and does them harm beyond just offending them, it is not just a harmless anachronism; it is a violation of the equal protection clause, as in Loving. See 388 U.S. at 8–12.
Against this the state argues in its opening brief that Loving “should be read as recognizing the constitutional restrictions on the government’s ability to infringe the freedom of individuals to decide for themselves how to arrange their own private and domestic affairs.” But that sounds just like what the government of Wisconsin has done: told homosexuals that they are forbidden to decide for themselves how to

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arrange their private and domestic affairs. If they want to marry, they have to marry a person of the opposite sex.
The state elaborates its argument from the wonders of tradition by asserting, again in its opening brief, that “thousands of years of collective experience has [sic] established traditional marriage, between one man and one woman, as optimal for the family, society, and civilization.” No evidence in support of the claim of optimality is offered, and there is no acknowledgment that a number of countries permit polygamy—Syria, Yemen, Iraq, Iran, Egypt, Sudan, Morocco, and Algeria—and that it flourishes in many African countries that do not actually authorize it, as well as in parts of Utah. (Indeed it’s been said that “polygyny, whereby a man can have multiple wives, is the marriage form found in more places and at more times than any other.” Stephanie Coontz, Marriage, a History: How Love Conquered Marriage 10 (2006).) But suppose the assertion is correct. How does that bear on same-sex marriage? Does Wisconsin want to push homosexuals to marry persons of the opposite sex because opposite-sex marriage is “optimal”? Does it think that allowing same-sex marriage will cause heterosexuals to convert to homosexuality? Efforts to convert homosexuals to heterosexuality have been a bust; is the opposite conversion more feasible?
Arguments from tradition must be distinguished from arguments based on morals. Many unquestioned laws are founded on moral principles that cannot be reduced to costbenefit analysis. Laws forbidding gratuitous cruelty to animals, and laws providing public assistance for poor and disabled persons, are examples. There is widespread moral opposition to homosexuality. The opponents are entitled to

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their opinion. But neither Indiana nor Wisconsin make a moral argument against permitting same-sex marriage.
The state’s second argument is: “go slow”: maintaining the prohibition of same-sex marriage is the “prudent, cautious approach,” and the state should therefore be allowed “to act deliberately and with prudence—or, at the very least, to gather sufficient information—before transforming this cornerstone of civilization and society.” There is no suggestion that the state has any interest in gathering information, for notice the assumption in the quoted passage that the state already knows that allowing same-sex marriage would transform a “cornerstone of civilization and society,” namely monogamous heterosexual marriage. One would expect the state to have provided some evidence, some reason to believe, however speculative and tenuous, that allowing same-sex marriage will or may “transform” marriage. At the oral argument the state’s lawyer conceded that he had no knowledge of any study underway to determine the possible effects on heterosexual marriage in Wisconsin of allowing same-sex marriage. He did say that same-sex marriage might somehow devalue marriage, thus making it less attractive to opposite-sex couples. But he quickly acknowledged that he hadn’t studied how same-sex marriage might harm marriage for heterosexuals and wasn’t prepared to argue the point. Massachusetts, the first state to legalize same-sex marriage, did so a decade ago. Has heterosexual marriage in Massachusetts been “transformed”? Wisconsin’s lawyer didn’t suggest it has been.
He may have been gesturing toward the concern expressed by some that same-sex marriage is likely to cause the heterosexual marriage rate to decline because heterosex-

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uals who are hostile to homosexuals, or who whether hostile to them or not think that allowing them to marry degrades the institution of marriage (as might happen if people were allowed to marry their pets or their sports cars), might decide not to marry. Yet the only study that we’ve discovered, a reputable statistical study, finds that allowing same-sex marriage has no effect on the heterosexual marriage rate. Marcus Dillender, “The Death of Marriage? The Effects of New Forms of Legal Recognition on Marriage Rates in the United States,” 51 Demography 563 (2014). No doubt there are more persons more violently opposed to same-sex marriage in states that have not yet permitted it than in states that have, yet in all states there are opponents of same-sex marriage. But they would tend also to be the citizens of the state who were most committed to heterosexual marriage (devout Catholics, for example).
No one knows exactly how many Americans are homosexual. Estimates vary from about 1.5 percent to about 4 percent. The estimate for Wisconsin is 2.8 percent, which includes bisexual and transgendered persons. Gary J. Gates & Frank Newport, “LGBT Percentage Highest in D.C., Lowest in North Dakota,” Gallup (Feb. 15, 2013), www.gallup.com/ poll/160517/lgbt-percentage-highest-lowest-north-dakota.as px. Given how small the percentage is, it is sufficiently implausible that allowing same-sex marriage would cause palpable harm to family, society, or civilization to require the state to tender evidence justifying its fears; it has provided none.
The state falls back on Justice Alito’s statement in dissent in United States v. Windsor, supra, 133 S. Ct. at 2716, that “at present, no one—including social scientists, philosophers,

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and historians—can predict with any certainty what the long-term ramifications of widespread acceptance of samesex marriage will be. And judges are certainly not equipped to make such an assessment.” What follows, if prediction is impossible? Justice Alito thought what follows is that the Supreme Court should not interfere with Congress’s determination in the Defense of Marriage Act that “marriage,” for purposes of entitlement to federal marital benefits, excludes same-sex marriage even if lawful under state law. But can the “long-term ramifications” of any constitutional decision be predicted with certainty at the time the decision is rendered?
The state does not mention Justice Alito’s invocation of a moral case against same-sex marriage, when he states in his dissent that “others explain the basis for the institution in more philosophical terms. They argue that marriage is essentially the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so.” Id. at 2718. That is a moral argument for limiting marriage to heterosexuals. The state does not mention the argument because as we said it mounts no moral arguments against same-sex marriage.
We know that many people want to enter into a same-sex marriage (there are millions of homosexual Americans, though of course not all of them want to marry), and that forbidding them to do so imposes a heavy cost, financial and emotional, on them and their children. What Wisconsin has not told us is whether any heterosexuals have been harmed by same-sex marriage. Obviously many people are distressed by the idea or reality of such marriage; otherwise these two cases wouldn’t be here. But there is a difference,

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famously emphasized by John Stuart Mill in On Liberty (1869), between the distress that is caused by an assault, or a theft of property, or an invasion of privacy, or for that matter discrimination, and the distress that is caused by behavior that disgusts some people but does no (other) harm to them. Mill argued that neither law (government regulation) nor morality (condemnation by public opinion) has any proper concern with acts that, unlike a punch in the nose, inflict no temporal harm on another person without consent or justification. The qualification temporal is key. To be the basis of legal or moral concern, Mill argued, the harm must be tangible, secular, material—physical or financial, or, if emotional, focused and direct—rather than moral or spiritual. Mill illustrated nontemporal harm with revulsion against polygamy in Utah (he was writing before Utah agreed, as a condition of being admitted to the union as a state, to amend its constitution to prohibit polygamy). The English people were fiercely critical of polygamy wherever it occurred. As they were entitled to be. But there was no way polygamy in Utah could have adverse effects in England, 4000 miles away. Mill didn’t think that polygamy, however offensive, was a proper political concern of England.
Similarly, while many heterosexuals (though in America a rapidly diminishing number) disapprove of same-sex marriage, there is no way they are going to be hurt by it in a way that the law would take cognizance of. Wisconsin doesn’t argue otherwise. Many people strongly disapproved of interracial marriage, and, more to the point, many people strongly disapproved (and still strongly disapprove) of homosexual sex, yet Loving v. Virginia invalidated state laws banning interracial marriage, and Lawrence v. Texas invalidated state laws banning homosexual sex acts.

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Though these decisions are in the spirit of Mill, Mill is not the last word on public morality. But Wisconsin like Indiana does not base its prohibition of same-sex marriage on morality, perhaps because it believes plausibly that Lawrence rules out moral objections to homosexuality as legitimate grounds for discrimination.
In passing, Wisconsin in its opening brief notes that it “recogniz[es] domestic partnerships.” Indeed it does: Wis. Stat. ch. 770. And the domestic partners must be of the same sex. Id., § 770.05(5). But the preamble to the statute states: “The legislature … finds that the legal status of domestic partnership as established in this chapter is not substantially similar to that of marriage,” § 770.001, citing for this proposition a decision by a Wisconsin intermediate appellate court. Appling v. Doyle, 826 N.W.2d 666 (Wis. App. 2012), affirmed, 2014 WI 96 (Wis. July 31, 2014). Indeed that is what the court held. It pointed out that chapter 770 doesn’t specify the rights and obligations of the parties to a domestic partnership. Rather you must go to provisions specifying the rights and obligations of married persons and see whether a provision that you’re concerned with is made expressly applicable to domestic partnerships, as is for example the provision that gives a surviving spouse the deceased spouse’s interest in their home. 826 N.W.2d at 668. But as the court further explained, the rights and obligations of domestic partners are far more limited than those of married persons. See id. at 682–86. (For example, only spouses may jointly adopt a child. Id. at 685.) They have to be far more limited, because of the state’s constitutional provision quoted above that “a legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recog-

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Nos. 14-2386 to 14-2388, 14-2526

nized.” Wis. Const. Art. XIII, § 13. Domestic partnership in Wisconsin is not and cannot be marriage by another name.
It is true that because the state does not regard same-sex marriages contracted in other states as wholly void (though they are not “recognized” in Wisconsin), citizens of Wisconsin who contract same-sex marriages in states in which such marriages are legal are not debarred from receiving some of the federal benefits to which legally married persons (including parties to a same-sex marriage) are entitled. Not to all those benefits, however, because a number of them are limited by federal law to persons who reside in a state in which their marriages are recognized. These include benefits under the Family & Medical Leave Act, see 29 C.F.R. § 825.122(b), and access to a spouse’s social security benefits. See 42 U.S.C. § 416(h)(1)(A)(i).
So look what the state has done: it has thrown a crumb to same-sex couples, denying them not only many of the rights and many of the benefits of marriage but also of course the name. Imagine if in the 1960s the states that forbade interracial marriage had said to interracial couples: “you can have domestic partnerships that create the identical rights and obligations of marriage, but you can call them only ‘civil unions’ or ‘domestic partnerships.’ The term ‘marriage’ is reserved for same-race unions.” This would give interracial couples much more than Wisconsin’s domestic partnership statute gives same-sex couples. Yet withholding the term “marriage” would be considered deeply offensive, and, having no justification other than bigotry, would be invalidated as a denial of equal protection.
The most arbitrary feature of Wisconsin’s treatment of same-sex couples is its refusal to allow couples in domestic

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partnerships to adopt jointly, as married heterosexual couples are allowed to do (and in Indiana, even unmarried ones). The refusal harms the children, by telling them they don’t have two parents, like other children, and harms the parent who is not the adoptive parent by depriving him or her of the legal status of a parent. The state offers no justification.
Wisconsin’s remaining argument is that the ban on samesex marriage is the outcome of a democratic process—the enactment of a constitutional ban by popular vote. But homosexuals are only a small part of the state’s population— 2.8 percent, we said, grouping transgendered and bisexual persons with homosexuals. Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.
In its reply brief Indiana adopts Wisconsin’s democracy argument, adding that “homosexuals are politically powerful out of proportion to their numbers.” No evidence is presented by the state to support this contention. It is true that an increasing number of heterosexuals support same-sex marriage; otherwise 11 states would not have changed their laws to permit such marriage (the other 8 states that allow same-sex marriage do so as a result of judicial decisions invalidating the states’ bans). No inference of manipulation of the democratic process by homosexuals can be drawn, however, any more than it could be inferred from the enactment of civil rights laws that African-Americans “are politically powerful out of proportion to their numbers.” It is to the credit of American voters that they do not support only laws that are in their palpable self-interest. They support laws

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Nos. 14-2386 to 14-2388, 14-2526

punishing cruelty to animals, even though not a single animal has a vote.
To return to where we started in this opinion, more than unsupported conjecture that same-sex marriage will harm heterosexual marriage or children or any other valid and important interest of a state is necessary to justify discrimination on the basis of sexual orientation. As we have been at pains to explain, the grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural; they are totally implausible.
For completeness we note the ultimate convergence of our simplified four-step analysis with the more familiar, but also more complex, approach found in many cases. In SmithKline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471, 483 (9th Cir. 2014), the Ninth Circuit concluded, based on a reading of the Supreme Court’s decisions in Lawrence and Windsor, that statutes that discriminate on the basis of sexual orientation are subject to “heightened scrutiny”—and in doing so noted that Windsor, in invalidating the Defense of Marriage Act, had balanced the Act’s harms and offsetting benefits: “Notably absent from Windsor’s review of DOMA are the ‘strong presumption’ in favor of the constitutionality of laws and the ‘extremely deferential’ posture toward government action that are the marks of rational basis review. … In its parting sentences, Windsor explicitly announces its balancing of the government’s interest against the harm or injury to gays and lesbians: ‘The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.’ 133 S.

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Ct. at 2696 (emphasis added). Windsor’s balancing is not the work of rational basis review.”
The Supreme Court also said in Windsor that “the Act’s demonstrated purpose is to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law.” 133 S. Ct. at 2693–94. A second-class marriage would be a lot better than the cohabitation to which Indiana and Wisconsin have consigned same-sex couples.
The states’ concern with the problem of unwanted children is valid and important, but their solution is not “tailored” to the problem, because by denying marital rights to same-sex couples it reduces the incentive of such couples to adopt unwanted children and impairs the welfare of those children who are adopted by such couples. The states’ solution is thus, in the familiar terminology of constitutional discrimination law, “overinclusive.” It is also underinclusive, in allowing infertile heterosexual couples to marry, but not same-sex couples.
Before ending this long opinion we need to address, though only very briefly, Wisconsin’s complaint about the wording of the injunction entered by the district judge. Its lawyers claim to fear the state’s being held in contempt because it doesn’t know what measures would satisfy the injunction’s command that all relevant state officials “treat same-sex couples the same as different sex couples in the context of processing a marriage license or determining the rights, protections, obligations or benefits of marriage.” If the state’s lawyers really find this command unclear, they should ask the district judge for clarification. (They should have done so already; they haven’t.) Better yet, they should

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draw up a plan of compliance and submit it to the judge for approval.
The district court judgments invalidating and enjoining these two states’ prohibitions of same-sex marriage are
AFFIRMED.

 
 Case: 3:14-cv-00064-bbc Document #: 134 Filed: 06/13/14 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

VIRGINIA WOLF and CAROL SCHUMACHER, KAMI YOUNG and KARINA WILLES, ROY BADGER and GARTH WANGEMANN, CHARVONNE KEMP and MARIE CARLSON, JUDITH TRAMPF and KATHARINA HEYNING, SALUD GARCIA and PAMELA KLEISS, WILLIAM HURTUBISE and LESLIE PALMER, JOHANNES WALLMANN and KEITH BORDEN,

Plaintiffs, v.

OPINION and ORDER 14-cv-64-bbc

SCOTT WALKER, in his official capacity as Governor of Wisconsin, J.B. VAN HOLLEN, in his official capacity as Attorney General of Wisconsin, OSKAR ANDERSON, in his official capacity as State Registrar of Wisconsin, JOSEPH CZARNEZKI, in his official capacity as Milwaukee County Clerk, WENDY CHRISTENSEN, in her official capacity as Racine County Clerk and SCOTT MCDONELL, in his official capacity as Dane County Clerk,

Defendants.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

In an order dated June 6, 2014, dkt. #118, I denied defendants’ motion to dismiss

and granted plaintiffs’ motion for summary judgment on plaintiffs’ claim that Wisconsin

laws banning same-sex couples from marrying violated the Fourteenth Amendment to the

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United States Constitution. However, I did not resolve plaintiffs’ request for injunctive
relief or defendants’ request to stay the injunction because plaintiffs had not proposed an
injunction that complied with the specificity requirement in Fed. R. Civ. P. 65(d).
Accordingly, I gave both sides an opportunity to file supplemental materials regarding the
content of the injunction.
In response to the court’s request, plaintiffs submitted a seven-paragraph proposed
injunction:
1. Defendants Wendy Christensen, Joseph Czarnezki and Scott McDonell, in their official capacities, and their officers, agents, servants, employees and attorneys, and all those acting in concert with them, are permanently enjoined from enforcing art. XIII, § 13 of the Wisconsin Constitution and any Wisconsin statutory provisions limiting marriage to different-sex couples, including those in Wis. Stat. ch. 765, so as to deny same-sex couples the same rights to marry that are provided to different-sex couples.
2. Defendants Wendy Christensen, Joseph Czarnezki and Scott McDonell, in their official capacities, and their officers, agents, servants, employees and attorneys, and all those acting in concert with them are permanently enjoined to issue marriage licenses to couples who, but for their sex, satisfy all the requirements to marry under Wisconsin law.
3. Defendant Oskar Anderson, in his official capacity, and his officers, agents, servants, employees and attorneys, and all those acting in concert with them, are permanently enjoined from enforcing art. XIII, § 13 of the Wisconsin Constitution and any Wisconsin statutory provisions limiting marriage to different-sex couples, including those in Wis. Stat. ch. 765, so as to deny same-sex couples the same rights to marry that are provided to different-sex couples.
4. Defendant Oskar Anderson, in his official capacity, and his officers, agents, servants, employees and attorneys, and all those acting in concert with them, are permanently enjoined to accept for registration, assign a date of acceptance, and index and preserve original marriage documents and original divorce reports for couples of the same sex on the same terms as for couples of different sexes under Wis. Stat. § 69.03(5).
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5. Defendant Oskar Anderson, in his official capacity, and his officers, agents, servants, employees and attorneys, and all those acting in concert with them, are permanently enjoined to prescribe, furnish and distribute, under Wis. Stat. § 69.03(8), forms required for marriages under Wis. Stat. ch. 69 and Wis. Stat. § 765.20 that permit couples of the same sex to marry on the same terms as couples of different sexes.
6. Defendants Scott Walker and J.B. Van Hollen, in their official capacities, and their officers, agents, servants, employees and attorneys, and all those acting in concert with them, are permanently enjoined from enforcing art. XIII, § 13 of the Wisconsin Constitution and any Wisconsin statutory provisions limiting marriage to different-sex couples, including those in Wis. Stat. ch. 765, so as to deny same-sex couples the same rights to marry that are provided to different-sex couples or to deny same-sex couples lawfully married in Wisconsin or in other jurisdictions the same rights, protections, obligations and benefits of marriage under Wisconsin law that are provided to different-sex couples.
7. Defendant Scott Walker, in his official capacity, and his officers, agents, servants, employees and attorneys, and all those acting in concert with them, are permanently enjoined to use the full extent of their authority under art. V, § 4 of the Wisconsin Constitution to ensure that same-sex couples may marry and that same-sex couples lawfully married in Wisconsin or other jurisdictions are provided the same state law rights, protections, obligations and benefits of marriage that are provided to different sex couples; and to direct all department heads, independent agency heads, or other executive officers appointed by the Governor under Wis. Stat. ch. 15 and their officers, agents, servants, employees and attorneys, and all those acting in concert with them to ensure that same-sex couples may marry in Wisconsin and to provide to same-sex couples lawfully married in Wisconsin or other jurisdictions all the state law rights, protections, obligations and benefits of marriage that are provided to different-sex couples.
Dkt. #126-1.
After defendants objected to the proposed injunction on various grounds, dkt. #128,
plaintiffs submitted an amended proposed injunction, dkt. #132-1, in which they added a
new paragraph related to defendant Van Hollen:
Defendant J.B. Van Hollen, in his official capacity, and his officers, agents,
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servants, employees and attorneys, and all those acting in concert with them, are permanently enjoined from initiating any prosecution of a county clerk under Wis. Stat. § 765.30(2)(b) for issuing a marriage license to a same-sex couple, or any prosecution of an officiant under § 765.30(3)(a) for solemnizing a marriage by a same-sex couple.
In addition, plaintiffs have proposed new language with respect to defendant
Anderson that relates to birth certificates. In paragraph four, plaintiffs ask that Anderson
be required to:
accept for registration, assign a date of acceptance, and index and preserve original birth certificates, under Wis. Stat. § 69.03(5), for children born to same-sex couples who were married at the time of the child’s birth so that both spouses are listed on the birth certificate as parents; and to accept for registration, assign a date of acceptance, and index and preserve any other vital records, under Wis. Stat. § 69.03(5), in which a spouse’s name is recorded so that same-sex spouses are treated the same as different-sex spouses.
In paragraph five, plaintiffs ask that Anderson be required to:
prescribe, furnish and distribute, under Wis. Stat. § 69.03(8), forms required for birth certificates that permit married same-sex couples to designate both spouses as parents; and to prescribe, furnish and distribute, under Wis. Stat. § 69.03(8), forms required for any other vital records in which a spouse’s name is recorded so that same-sex spouses are treated the same as different-sex spouses.
On June 13, 2014, a hearing was held to resolve disputes about the content of the
injunction and to decide whether to stay the injunction when it issued. Plaintiffs appeared
by John Knight, Gretchen Helfrich, Frank Dickerson and Jim Esseks. Defendants Walker,
Van Hollen and Anderson appeared by Timothy Samuelson, Clayton Kawski and Daniel
Lennington. Defendant McDonell appeared personally and by David Gault. Defendant
Czarnezki appeared by Paul Bargren. Defendant Christensen appeared by Michael
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Langsdorf. After considering the written materials submitted by the parties and their arguments
at the hearing, I am adopting some of the language in plaintiffs’ proposed injunction, modifying some of the language and eliminating some, for the reasons discussed below. In addition, I conclude that Herbert v. Kitchen, 134 S. Ct. 893 (2014), compels me to stay the injunction.
A. Content of the Injunction Rule 65(d) of the Federal Rules of Civil Procedure requires that an injunction “state its terms specifically” and “describe in reasonable detail . . . the act or acts sought to be restrained or required.” Paragraphs (1), (3) and (6) of plaintiffs’ proposed injunction do not meet that standard. In each of these paragraphs, plaintiffs ask that defendants be enjoined from “enforcing” the unconstitutional laws without identifying any particular acts of possible enforcement. Vague injunctions that do no more than require parties to “follow the law” are disfavored. EEOC v. AutoZone, Inc., 707 F.3d 824, 841 (7th Cir. 2013) (“An injunction that does no more than order a defeated litigant to obey the law raises several concerns.”). Two related problems with this type of injunction are that it fails to give the defendants adequate notice of conduct that is required or prohibited and it makes disputes about potential violations of the injunction that much more difficult to resolve. Marseilles Hydro Power, LLC v. Marseilles Land & Water Co., 299 F.3d 643, 646 (7th Cir. 2002). At the hearing, counsel for plaintiffs said that it simply was too difficult to be more
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specific in these provisions, but if plaintiffs are unable to articulate what they want defendants to do, then it would be equally problematic for defendants to determine for themselves what is required and prohibited. Thus, it is in the interest of all parties to make the requirements in the injunction as clear and precise as possible. As defendants point out, the Court of Appeals for Seventh Circuit has not hesitated to reject injunctions that do not comply with the content requirements of Fed. R. Civ. P. 65. Wisconsin Right To Life, Inc. v. Barland, No. 12-2915, — F.3d — , 2014 WL 1929619, *23 (7th Cir. May 14, 2014) (ordering district court to amend injunction to comply with specificity requirement in Rule 65 even though none of the parties raised that issue on appeal); Patriot Homes, Inc. v. Forest River Housing, Inc., 512 F.3d 412, 415 (7th Cir. 2008) (vacating injunction that “require[d] a lot of guesswork on [defendant’s] part in order to determine if it is engaging in activities that violate the injunction, since the order itself is a little more than a recitation of the law”); PMC, Inc. v. Sherwin-Williams Co., 151 F.3d 610, 619 (7th Cir. 1998) (vacating injunction that “fail[ed] to comply with the requirements of Fed. R. Civ. P. 65 that an injunction be precise and self-contained, so that a person subject to it who reads it and nothing else has a sufficiently clear and exact knowledge of the duties it imposes on him that if he violates it he can be adjudged guilty of criminal contempt”).
I see no problem with the specificity of plaintiffs’ proposed paragraph (2), in which plaintiffs ask that the county clerks be enjoined from discriminating against same-sex couples in the context of issuing marriage licenses. However, I have reworded the paragraph slightly in an attempt to make it clearer. In particular, I have changed plaintiffs’ proposed language
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that the clerks are “enjoined to issue marriage licenses to couples who, but for their sex, satisfy all the requirements to marry under Wisconsin law” to say that the clerks are “enjoined from denying a marriage license to a couple because both applicants for the license are the same sex.”
In the original versions of paragraphs (4) and (5) of the proposed injunction, plaintiffs asked for an order requiring the registrar to accept marriage and divorce documents from same-sex couples and to modify the existing forms to be inclusive of those couples. Because defendants have raised no specific, substantive objections to these paragraphs and I see no problems with them, I will include these paragraphs in the injunction.
However, I am not including the additions to these paragraphs related to birth certificates that plaintiffs included with their reply brief. The new language is not responsive to any objections that defendants raised and plaintiffs do not explain why they did not include the language in any of their previous proposals. Even if I overlooked the untimeliness of the request, an injunction related to birth certificates seems to go beyond the scope of the issues in this case. Plaintiffs have not developed an argument that an amendment to procedures related to obtaining a birth certificate is implicit in the conclusion that a ban of same-sex marriage is unconstitutional. Any disputes that arise about birth certificates will have to be resolved in another forum.
Defendants objected to including any injunction related to defendants Walker and Van Hollen on the ground that “[n]either [Walker nor Van Hollen] is a public official with statutory authority to either validate or invalidate a marriage. Furthermore, neither is vested
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with statutory authority to take any action in regard to a marriage license under Chapter 765.” Dfts.’ Br., dkt. #128, at 5. In response to this argument, plaintiffs proposed the additional paragraph related to Van Hollen in which they seek to enjoin him from prosecuting county clerks for issuing marriage licenses to same-sex couples. They cite media reports in which Van Hollen is quoted as stating that county clerks who have issued such licenses may be violating state law. Patrick Marley and Dana Ferguson, “Van Hollen: Clerks issuing licenses to gay couples could be charged,” Milwaukee Journal Sentinel (June 12, 2014). Although the reports quote Van Hollen as stating that it would be “up to district attorneys” to decide whether to prosecute the clerks, plaintiffs cite Wis. Stat. § 165.25(1m) for the proposition that Van Hollen has the authority to prosecute the clerks as well.
Regardless whether the attorney general has authority to initiate prosecutions, this seems to be another issue that goes beyond the scope of the June 6 order. In particular, that order does not address the question whether county clerks were entitled under state law to issue marriage licenses to same-sex couples in the absence of an injunction. Accordingly, I decline to issue an injunction against defendant Van Hollen because plaintiffs have not identified any specific actions that he may be required to take to enforce the June 6 order.
In what was originally paragraph (7) in the proposed injunction, plaintiffs ask for an order requiring defendant Walker and his agents “to use the full extent of their authority under art. V, § 4 of the Wisconsin Constitution” to enforce the court’s ruling. Again, plaintiffs do not identify in their proposed injunction any specific actions they want Walker or any of his agents to take. In their brief, plaintiffs say that they want Walker to give
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“direction to officers in the executive branch to provide recognition (and its attendant state law benefits, obligation, protections, and rights) to married same-sex couples.” Plts’ Reply Br., dkt. #132, at 8. This is a little closer to mark, but it is still unclear what plaintiffs mean by the phrase “provide recognition.” Because the key issue in this case is that plaintiffs are entitled to be treated the same as any opposite-sex couple, I will issue the following injunction with respect to defendant Walker:
Defendant Scott Walker, in his official capacity, is permanently enjoined to direct all department heads, independent agency heads, or other executive officers appointed by the Governor under Wis. Stat. ch. 15 and their officers, agents, servants, employees and attorneys, and all those acting in concert with them, to treat same-sex couples the same as different sex couples in the context of processing a marriage license or determining the rights, protections, obligations or benefits of marriage. Defendants also raise two, more general objections to plaintiffs’ proposed injunction. First, defendants object to plaintiffs’ request to enjoin not only defendants themselves, but also defendants’ “officers, agents, servants, employees and attorneys, and all those acting in concert with them.” I am overruling this objection because Rule 65 itself says that “the parties' officers, agents, servants, employees, and attorneys” and “other persons who are in active concert or participation with” the parties’ are bound by the injunction. Fed. R. Civ. P. 65(d)(2). “The purpose of the rule is to ensure that defendants may not nullify a decree by carrying out prohibited acts through aiders and abettors, although they were not parties to the original proceeding.” Blockowicz v. Williams, 630 F.3d 563, 566-70 (7th Cir. 2010) (internal quotations omitted). Although I am sympathetic to defendants’ concern about the lack of specificity, I also
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understand that it would be impossible to list every individual who might act as an agent for one or more of the defendants. In lieu of limiting an injunction to just the defendants, the court of appeals has stated that this type of concern about scope can be addressed after the fact if a dispute arises. H-D Michigan, LLC v. Hellenic Duty Free Shops S.A., 694 F.3d 827, 842 (7th Cir. 2012) (“Should any non-party believe that it has been enjoined improperly, it is free to seek a modification or clarification from the district court.”).
Finally, defendants say that plaintiffs’ proposed injunction “effectively requires a rewrite of Wisconsin Statutes.” Dfts.’ Br., dkt. #128, at 11. I am overruling this objection as well. The proposed injunction does not require the “re-writing” of any statutes. Rather, it requires only equal treatment of same-sex couples and opposite-sex couples. If I accepted defendants’ argument, it would be impossible for individuals subjected to constitutional violations to obtain relief when the violation was caused by multiple laws.
B. Motion to Stay This leaves the question whether the injunction should be stayed pending appeal under Fed. R. Civ. P. 62(c). Generally, the answer to that question is determined by weighing four factors: (1) whether the defendant has made a strong showing that it is likely to succeed on appeal; (2) whether the defendant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Hilton v. Braunskill, 481 U.S. 770, 776 (1987).
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If I were considering these factors as a matter of a first impression, I would be inclined to agree with plaintiffs that defendants have not shown that they are entitled to a stay. However, I cannot ignore the Supreme Court’s order in Herbert v. Kitchen, 134 S. Ct. 893 (2014), in which the Court stayed a district court’s order enjoining state officials in Utah from enforcing its ban on same-sex marriage. It is impossible to know the Court’s reasoning for issuing the stay because the Court did not accompany the order with an opinion, but, since Herbert, every statewide order enjoining the enforcement of a ban on same-sex marriage has been stayed, either by the district court or the court of appeals, at least when the state requested a stay. In following Herbert, other courts have stated that, despite the lack of any reasoning in Herbert, they did not see any grounds for distinguishing the Supreme Court’s order. E.g., DeBoer v. Snyder, No. 14-1341 (6th Cir. Mar. 25, 2014).
Plaintiffs offer two grounds for distinguishing Herbert: (1) since Herbert, each of the more than a dozen district courts considering bans on same-sex marriage has concluded that the ban is unconstitutional; and (2) same-sex marriages recognized under state law in other states since Herbert have not caused any harm to the state. However, even if I accept both of these arguments, it does not change the fact that the Supreme Court’s order in Herbert is still in place. Until the Supreme Court provides additional guidance on this issue, the unanimity of federal districts is not a dispositive factor.
It is true that the Supreme Court declined to issue a stay in a more recent case in which a district court in Oregon enjoined enforcement of that state’s ban on same-sex marriage. National Organization for Marriage v. Geiger, 13A1173, 2014 WL 2514491
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(U.S. June 4, 2014). However, that order is not instructive because the district court’s injunction was not opposed by the state; rather, a nonparty had requested the stay. Thus, I do not interpret Geiger as undermining the Court’s order in Herbert.
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 on the event that is responsible for eliciting that emotion, even if the stay is only temporary. Same-sex couples have waited many years to receive equal treatment under the law, so it is understandable that they do not want to wait any longer. However, a federal district court is required to follow the guidance provided by the Supreme Court. Because I see no way to distinguish this case from Herbert, I conclude that I must stay any injunctive relief pending appeal.
The remaining question is whether the stay should include all relief, including the declaration, rather than just the injunction. Although I remain dubious that it is necessary to “stay” declaratory relief, I understand that there has been much confusion among county clerks regarding the legal effect of the declaration. To avoid further confusion among the clerks, I will issue a stay of all relief.
ORDER Pursuant to Fed. R. Civ. P. 65(d), and for the reasons set forth in this court's June 6, 2014 Opinion and Order, dkt. #118, IT IS ORDERED that 1. Defendants Wendy Christensen, Joseph Czarnezki and Scott McDonell, in their official capacities, and their officers, agents, servants, employees and attorneys, and all those
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acting in concert with them are permanently enjoined from denying a marriage license to a couple because both applicants for the license are the same sex.
2. Defendant Oskar Anderson, in his official capacity, and his officers, agents, servants, employees and attorneys, and all those acting in concert with them, are permanently enjoined to accept for registration, assign a date of acceptance and index and preserve original marriage documents and original divorce reports for couples of the same sex on the same terms as for couples of different sexes under Wis. Stat. § 69.03(5).
3. Defendant Oskar Anderson, in his official capacity, and his officers, agents, servants, employees and attorneys, and all those acting in concert with them, are permanently enjoined to prescribe, furnish and distribute, under Wis. Stat. § 69.03(8), forms required for marriages under Wis. Stat. ch. 69 and Wis. Stat. § 765.20 that permit couples of the same sex to marry on the same terms as couples of different sexes.
4. Defendant Scott Walker, in his official capacity, is permanently enjoined to direct all department heads, independent agency heads, or other executive officers appointed by the Governor under Wis. Stat. ch. 15 and their officers, agents, servants, employees and attorneys, and all those acting in concert with them, to treat same-sex couples the same as different sex couples in the context of processing a marriage license or determining the rights, protections, obligations or benefits of marriage.
FURTHER IT IS ORDERED that defendants’ motion to stay all relief in this case, dkt. #114, is GRANTED. The injunction and the declaration shall take effect after the conclusion of any appeals or after the expiration of the deadline for filing an appeal,
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whichever is later. The clerk of court is directed to enter judgment in favor of plaintiffs and close this
case. Entered this 13th day of June, 2014. BY THE COURT: /s/ BARBARA B. CRABB District Judge
14

 
 Wolf v. Walker, 9 F.Supp.3d 889 (2014)

9 F.Supp.3d 889 United States District Court,
W.D. Wisconsin.
Virginia WOLF and Carol Schumacher, Kami Young and Karina Willes, Roy Badger and Garth
Wangemann, Charvonne Kemp and Marie Carlson, Judith Trampf and Katharina Heyning, Salud Garcia and Pam Kleiss, William Hurtubise and Leslie Palmer, Johannes Wallmann and Keith
Borden, Plaintiffs, v.
Scott WALKER, in his official capacity as Governor of Wisconsin, J.B. Van Hollen, in his official capacity as Attorney General of Wisconsin, Richard G. Chandler, in his official capacity as
Secretary of Revenue of Wisconsin, Oskar Anderson, in his official capacity as State Registrar of Wisconsin, Gary King, in his official capacity as
Eau Claire County District Attorney, John Chisholm, in his official capacity as Milwaukee County District Attorney, Joseph Czarnezki, in his
official capacity as Milwaukee County Clerk, Wendy Christensen in her official capacity as Racine County Clerk and Scott McDonell, in his
official capacity as Dane County Clerk, Defendants.
No. 14–cv–64–bbc. | Signed March 24, 2014.
Synopsis Background: Individuals brought action against governor, state attorney general, and other officials, challenging the constitutionality of Wisconsin restrictions on marriage between same-sex couples. Defendants filed motion to abstain and stay the case until the Wisconsin Supreme Court decided other case concerning whether Wisconsin’s domestic partnership statute violated the Wisconsin Constitution on the ground that it created a legal status substantially similar to marriage.
Holdings: The District Court, Barbara B. Crabb, J., held that:
[1] Pullman abstention was not warranted, and
[2] Burford abstention was not warranted.

Motion denied.
Attorneys and Law Firms
*891 John Anthony Knight, Roger Baldwin Foundation of ACLU, Inc., Frank M. Dickerson, III, Gretchen E. Helfrich, Hans J. Germann, Mayer Brown LLP, Chicago, IL, Laurence J. Dupuis, ACLU of Wisconsin Foundation, Inc., Milwaukee, WI, James D. Esseks, American Civil Liberties Union Foundation, New York, NY, for Plaintiffs.
Clayton P. Kawski, Thomas Charles Bellavia, Timothy Craig Samuelson, Wisconsin Department of Justice, David Gault, Madison, WI, Gretchen E. Helfrich, Mayer Brown LLP, Chicago, IL, Paul Bargren, Milwaukee, WI, John Paul Serketich, Racine County Corporation Counsel, Racine, WI, for Defendants.
OPINION and ORDER
BARBARA B. CRABB, District Judge.
Plaintiffs in this case are challenging the constitutionality of Wisconsin restrictions on marriage between same-sex couples. After plaintiffs withdrew their motion for a preliminary injunction in favor of an expedited schedule, dkt. # 55, Magistrate Judge Stephen Crocker set deadlines for filing dispositive motions, which means that briefing will be finished by the end of May 2014. Dkt. # 65.
Now defendants Scott Walker, J.B. Van Hollen, Richard G. Chandler, Oskar Anderson, Gary King and John Chisholm (referring to themselves as “the state defendants”) have filed “a motion to abstain and stay” on two grounds. Dkt. # 57. First, the state defendants argue that it is appropriate to stay the case until the Wisconsin Supreme Court decides Appling v. Walker, No. 2011AP1572. Second, the state defendants argue that abstention is appropriate because plaintiffs’ requested relief “would disrupt the state’s important interest in the uniform and coherent administration of state marriage laws.” Dfts.’ Br., dkt. # 58, at 2.
Because the state defendants have not shown that abstention is appropriate for either reason, I am denying their motion. Abstaining or staying the case would serve no purpose but to delay the case.
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OPINION
[1] As the Supreme Court has noted on several occasions, “a federal court’s obligation to hear and decide a case is virtually unflagging.” Sprint Communications, Inc. v. Jacobs, ––– U.S. ––––, 134 S.Ct. 584, 590–91, 187 L.Ed.2d 505 (2013) (internal quotations omitted). Abstention “is the exception, not the rule, and can be justified only in exceptional circumstances.” Adkins v. VIM Recycling, Inc., 644 F.3d 483, 496–97 (7th Cir.2011) (internal quotations omitted).
*892 [2] [3] The state defendants rely on two separate abstention doctrines. First, under Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), a court may stay a case if “there is a substantial uncertainty as to the meaning of the state law” and “there exists a reasonable probability that the state court’s clarification of state law might obviate the need for a federal constitutional ruling.” Wisconsin Right to Life State Political Action Committee v. Barland, 664 F.3d 139, 150 (7th Cir.2011) (internal quotations omitted). “The main purpose of the Pullman doctrine is to avoid, if possible, declaring a state statute unconstitutional, by giving the state courts a chance to interpret it narrowly.” Mazanec v. N. Judson–San Pierre School Corp., 763 F.2d 845, 847 (7th Cir.1985). For example, in Pullman, 312 U.S. at 498, 61 S.Ct. 643, the plaintiffs challenged a railroad regulation on two grounds: it was racially discriminatory in violation of the equal protection clause and the railroad commission did not have the authority under state law to issue the regulation. Because the resolution of the state law issue was “far from clear,” id. at 499, 61 S.Ct. 643, the Supreme Court concluded that the district court should have stayed the case pending a decision by a state court in order to avoid “the friction of a premature constitutional adjudication.” Id. at 500, 61 S.Ct. 643.
[4] Second, under Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), a federal court may abstain from hearing a case “when it is faced with difficult questions of state law that implicate significant state policies” or “when concurrent federal jurisdiction would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.” Adkins, 644 F.3d at 504 (internal quotations omitted). However, a disruption to state policy may be a basis for abstaining only when the state offers an alternative forum in a court “with specialized expertise” to review the plaintiffs’ claims. Id.

[5] With respect to Pullman abstention, the state defendants do not suggest that there is any uncertainty regarding whether the Wisconsin Constitution prohibits same-sex couples such as plaintiffs from marrying in Wisconsin. That is obvious from the language of the amendment. Wis. Const. art. XIII, § 13 (“Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.”). Further, defendants acknowledge that Appling v. Walker will not “obviate the need for a federal constitutional ruling” in this case. Barland, 664 F.3d at 150. As made clear by the Wisconsin Court of Appeals, Appling “is not about whether the Wisconsin or United States Constitutions require, on equal protection or other grounds, that same-sex couples have the right to a legally recognized relationship that is identical or substantially similar to marriage.” Appling v. Doyle, 2013 WI App 3, ¶ 5, 345 Wis.2d 762, 766, 826 N.W.2d 666, 668. Rather, the question in Appling is whether Wisconsin’s 2009 domestic partnership statute violates the Wisconsin Constitution on the ground that it creates a legal status that is substantially similar to marriage. Thus, regardless whether the state supreme court upholds the domestic partnership law or strikes it down, this court will still have to decide whether Wisconsin’s ban on same-sex marriage violates the United States Constitution.
The state defendants cite various cases for the proposition that Pullman abstention is appropriate even when the state *893 court decision may not eliminate the federal constitutional question, saying it is enough if resolving the state law issue first will “materially alter” the federal question. Dfts.’ Br., dkt. # 58, at 3–4 (citing Bellotti v. Baird, 428 U.S. 132, 146–47, 96 S.Ct. 2857, 49 L.Ed.2d 844 (1976); Harris County Commissioners Court v. Moore, 420 U.S. 77, 84, 95 S.Ct. 870, 43 L.Ed.2d 32 (1975); Kusper v. Pontikes, 414 U.S. 51, 54, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973); American Booksellers Association, Inc. v. Hudnut, 771 F.2d 323, 327 (7th Cir.1985); E & E Hauling, Inc. v. Forest Preserve District of DuPage County, Illinois, 821 F.2d 433, 436 (7th Cir.1987)). The problem with the state defendants’ argument is that they never explain with any specificity how the decision in Appling is likely to change the scope of the issues in this case. Although they state repeatedly throughout their opening brief that Appling is important to this case, all of their arguments are conclusory:
• “Because the Wisconsin Supreme Court’s interpretation of the state-law issues in Appling will substantially affect this Court’s analysis of the federal constitutional issues in this case, Pullman
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Wolf v. Walker, 9 F.Supp.3d 889 (2014)
abstention is warranted here,” Dfts.’ Br., dkt. # 58, at 2;
• “Any evaluation of plaintiffs’ claims necessarily turns on the meaning of the Marriage Amendment and, in particular, on: (1) the scope and severity of any legal disabilities it may impose on same sex couples; (2) the particular meaning of the phrase ‘legal status ... of marriage;’ and (3) the purpose and intent of the legislators who framed and legislatively passed the Marriage Amendment and of the voters who ratified it,” id. at 5;
• “[T]he Wisconsin Supreme Court’s interpretation of the state-law issues in Appling will substantially affect this Court’s analysis of those federal issues,” id. at 5 n. 2;
• “Any subsequent briefing and review of plaintiffs’ federal constitutional claims in this Court then will be able to benefit from the views of the Wisconsin Supreme Court on these important state-law issues,” id. at 6;
• “[T]he Wisconsin Supreme Court will soon issue a decision in Appling which is expected to address the intent and purposes behind the passage of the Marriage Amendment, the contours of the restrictions on the legal status of marriage under Wisconsin state law, and the scope and severity of any claimed legal disabilities that Wisconsin’s marriage laws may impose on same-sex couples. Under the Pullman doctrine, therefore, it is appropriate for this Court to abstain from addressing the federal constitutional issues raised by Plaintiffs in this case until the Wisconsin Supreme Court has decided Appling,” id. at 8.
Even if I accept the state defendants’ view of the issues likely to be decided in Appling, missing from their argument is any discussion of how those issues will have any bearing on the question whether Wis. Const. art. XIII. § 13 violates the United States Constitution. Although the state defendants list what they view as important issues in this case, they do not tie those issues to any particular argument they intend to make and they do not point to any discussion in the Wisconsin Court of Appeals’ decision in Appling suggesting that the Wisconsin Supreme Court’s decision is likely to provide useful guidance.
In their reply brief, the state defendants focus for the first time on the question in *894 Appling whether “the term ‘legal status’ [in Wis. Const. art. XIII, § 13] encompasses only the eligibility and formation requirements of

marriages and domestic partnerships” rather than “the rights and obligations that come with these relationships.” Appling, 2013 WI App 3, at ¶ 19. They argue that the resolution of that issue will “mak[e] a significant difference” in this case, Dfts.’ Reply Br., dkt. # 64, at 4, but, again, they never explain why. It is telling that the state defendants did not cite the Wisconsin Court of Appeals’ decision in Appling even once in the motion to dismiss they filed on March 20, 2014. Dkt. # 67. One would think that, if the issues in Appling were as important to this case as the state defendants say, they would rely on the court of appeals’ decision to support their arguments. My own review of that decision reveals nothing that would help resolve the issues raised in this case.
As plaintiffs point out, if the Wisconsin Supreme Court upholds the domestic partnership law, nothing changes. If the court invalidates the law, the only effect is to make the deprivation imposed on plaintiffs by Wis. Const. art. XIII, § 13 more severe. Thus, it is difficult to envision any scenario in which the state defendants could rely on the supreme court’s decision to strengthen their position. In any event, the state defendants have not met their burden to show that exceptional circumstances exist that would justify a stay under Pullman.
[6] With respect to Burford abstention, the state defendants argued initially that abstention was appropriate “to protect the State of Wisconsin’s important interest in the uniform and coherent administration of its marriage laws” because plaintiffs named only three county clerks in their complaint. Dfts.’ Br., dkt. # 58, at 12. In particular, the state defendants said, “Because the county clerks in Wisconsin issue all marriage licenses, see Wis. Stat. § 765.12(1), a judgment in plaintiffs’ favor in this case could create a situation in which the three defendant county clerks would be required to issue marriage licenses to same-sex couples, while other county clerks would not be subject to that requirement and could continue to issue marriage licenses only to opposite-sex couples.” Id. at 13. In addition, the state defendants argued that plaintiffs had failed to show that “any of the State Defendants has any legal power to direct the actions of Wisconsin’s county clerks with regard to the issuance of marriage licenses, nor are the State Defendants independently aware of any such power.” Id. at 14.
In their reply brief, the state defendants acknowledge that they cannot satisfy the requirements of Burford abstention because Wisconsin does not have a “specialized forum related to the administration of state marriage laws.” Dfts.’ Reply Br., dkt. # 64, at 6. Instead, the state defendants ask the court to “take steps to address the
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Wolf v. Walker, 9 F.Supp.3d 889 (2014)
uniformity concern they have raised.” Id.
Both plaintiffs and defendants Joseph Czarnezki, Wendy Christensen and Scott McDonell (the three county clerk defendants) say that the concern is speculative. They argue that other county clerks likely would comply with any orders in this case, either through defendant Oskar Anderson (the state registrar of vital statistics, who establishes the form for marriage licenses that clerks must use, Wis. Stat. § 765.20(1)) or through the doctrine of claim preclusion (because the other clerks are in privity with the state defendants).
I need not resolve the debate in this order because the state defendants’ argument has other problems. First, although defendants acknowledge that abstention is not appropriate, they do not say what they want the court to do in the alternative. *895 They raise an argument in their reply brief about Fed.R.Civ.P. 19(a)(1)(B)(ii), which requires joinder of additional parties if the absence of those parties may “leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.” This suggests that the state defendants are asking the court to force plaintiffs to join as a defendant every county clerk in the state of Wisconsin. However, because plaintiffs are not seeking marriage licenses from each county clerk, it is questionable whether they would have standing to sue other clerks. In any event, the state defendants do not suggest that a judgment in plaintiffs’ favor would subject any existing party to inconsistent obligations.
	   	  

Second, the state defendants are seeking to place an extraordinary burden on plaintiffs without any authority for doing so. In essence, defendants are asking the court to require plaintiffs to forfeit their case unless they join other same-sex couples who wish to marry in every Wisconsin county or replead their case as a class action. Plaintiffs have the right under 42 U.S.C. § 1983 to bring a lawsuit to vindicate their own constitutional rights. I am aware of no authority that would impose as a prerequisite to obtaining relief a guarantee that every other Wisconsin citizen obtain the same outcome. The only case the state defendants cite in support of their request is McGee v. Cole, 993 F.Supp.2d 639, CIV. 3:13–24068, 2014 WL 321122 (S.D.W.Va. Jan. 29, 2014), but that court relied on Burford abstention, which defendants admit does not apply to the circumstances of this case. Thus, even if I assume that state defendants are correct that the judgment in this case would not bind nonparty county clerks, I see no legal grounds for granting the state defendants’ request.
ORDER
IT IS ORDERED that the motion to stay filed by defendants Scott Walker, J.B. Van Hollen, Richard G. Chandler, Oskar Anderson, Gary King and John Chisholm, dkt. # 57, is DENIED.
	  
	  

4

 
 Wolf v. Walker, Slip Copy (2014)

2014 WL 1729098 Only the Westlaw citation is currently available.
United States District Court, W.D. Wisconsin.
Virginia WOLF and Carol Schumacher, Kami Young and Karina Willes, Roy Badger and Garth
Wangemann, Charvonne Kemp and Marie Carlson, Judith Trampf and Katharina Heyning, Salud Garcia and Pam Kleiss, William Hurtubise and Leslie Palmer, Johannes Wallmann and Keith
Borden, Plaintiffs, v.
Scott WALKER, in his official capacity as Governor of Wisconsin, J .B. Van Hollen, in his official capacity as Attorney General of Wisconsin, Richard G. Chandler, in his official capacity as
Secretary of Revenue of Wisconsin, Oskar Anderson, in his official capacity as State Registrar of Wisconsin, Gary King, in his official capacity as
Eau Claire County District Attorney, John Chisholm, in his official capacity as Milwaukee County District Attorney, Joseph Czarnezki, in his
official capacity as Milwaukee County Clerk, Wendy Christensen, in her official capacity as Racine County Clerk and Scott McDonell, in his
official capacity as Dane County Clerk, Defendants.
No. 14–cv–64–bbc. | Signed April 30, 2014.
Attorneys and Law Firms
John Anthony Knight, Roger Baldwin Foundation of ACLU, Inc., Frank M. Dickerson, III, Gretchen E. Helfrich, Hans J. Germann, Mayer Brown LLP, Chicago, IL, Laurence J. Dupuis, ACLU of Wisconsin Foundation, Inc., Milwaukee, WI, James D. Esseks, American Civil Liberties Union Foundation, New York, NY, for Plaintiffs.
Clayton P. Kawski, Thomas Charles Bellavia, Timothy Craig Samuelson, Wisconsin Department of Justice, David Gault, Dane County Corporation Counsel, Madison, WI, Paul Bargren, Milwaukee County Corporation Counsel, Milwaukee, WI, John Paul Serketich, Racine, WI, for Defendants.

OPINION and ORDER
BARBARA B. CRABB, District Judge.
*1 Eight Wisconsin same-sex couples brought this case under 42 U.S.C. § 1983 to challenge the validity of state law restrictions on their ability to marry. Defendants Scott Walker, J.B. Van Hollen, Richard G. Chandler, Oskar Anderson, Gary King and John Chisholm have filed a motion to dismiss for failure to state a claim upon which relief may be granted under Fed.R.Civ.P. 12(b)(6), dkt. # 66, which is ready for review. (Because defendants Joseph Czarnezki, Wendy Christensen and Scott McDonell did not participate in the motion to dismiss, I will refer to Walker, Van Hollen, Chandler, Anderson, King and Chisholm simply as “defendants” for the remainder of the opinion.)
In their motion, defendants raise both substantive and procedural arguments. The substantive arguments overlap with the arguments in plaintiffs’ motion for summary judgment, which is still being briefed, so this order will focus on defendants’ procedural arguments only. I will address the substantive arguments in the context of deciding plaintiffs’ summary judgment motion.
Defendants raise three procedural issues, which are whether (1) the complaint should be dismissed as to Gary King and John Chisholm because those claims are moot; (2) plaintiffs’ amended complaint should be dismissed because it does not provide fair notice of plaintiffs’ claims, as required by Fed.R.Civ.P. 8; and (3) the amended complaint should be dismissed as to defendants Richard F. Chandler and Oskar Anderson because plaintiffs have not identified in the complaint how those defendants are personally involved in a constitutional violation.
Plaintiffs do not oppose defendants’ motion as to defendants King and Chisholm and I agree that plaintiffs do not have a justiciable controversy with respect to those two defendants, so I am granting that aspect of defendants’ motion. In addition, I am granting the motion as to defendant Chandler because plaintiffs have not identified any relief that they can obtain from that defendant even if they prevail on their claims. I am denying the motion as to the other procedural arguments defendants raise, for the reasons discussed below.

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Wolf v. Walker, Slip Copy (2014)
OPINION
A. Defendants King and Chisholm
Under Wis. Stat. § 765.30(1)(a), a person “may be fined not more than $10,000 or imprisoned for not more than 9 months or both” for “residing and intending to continue to reside in this state who goes outside the state and there contracts a marriage prohibited or declared void under the laws of this state.” In their complaint, plaintiffs alleged that some of the couples had been married in other states and they asked for an injunction against applying § 765 .30(1)(a) to those couples, who live in Milwaukee and Eau Claire counties. However, in a stipulation filed on March 11, 2014, defendants King and Chisholm, the district attorneys for Milwaukee and Eau Claire counties, agreed that they would not prosecute plaintiffs because King and Chisholm believe that § 765.30(1)(a) does not apply to plaintiffs. Dkt. # 55–1. As a result of this stipulation, the parties agree that there is no real controversy between plaintiffs and King and Chisholm, so the complaint should be dismissed as to those defendants. I agree as well. The parties’ stipulation shows that there is no “credible threat of prosecution,” which means that there is no actual controversy for this court to resolve. Babbitt v. Farm Workers, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979).
*2 In their reply brief, defendants argue that the court should “declare that Wis. Stat. § 765.30(1) does not apply to same-sex marriage” because plaintiffs did not respond to this aspect of defendants’ argument from their opening brief. Dfts.’ Reply Br., dkt. # 96, at 3. However, that request represents a fundamental misunderstanding of the relationship between jurisdiction and the merits. A conclusion that there is no real controversy between the parties is a conclusion that the court lacks subject matter jurisdiction over that issue. Arizona Christian School Tuition Organization v. Winn, ––– U.S. ––––, –––– – ––– –, 131 S.Ct. 1436, 1441–42, 179 L.Ed.2d 523 (2011) (federal court’s authority under Article III of United States Constitution is limited to “cases or controversies”). It is well established that, once a court determines that it does not have jurisdiction, that is the end of the matter; the court may not proceed to decide the merits. Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (“Without jurisdiction the court cannot proceed at all in any cause.”); Craig v. Ontario Corp., 543 F.3d 872, 875 (7th Cir.2008) ( “Subject-matter jurisdiction is ... central to the district court’s power to issue any orders whatsoever .”). Accordingly, regardless whether plaintiffs responded to defendants’ argument about the proper interpretation of §

765.30(1)(a), I have no authority to adopt defendants’ view.
B. Fair Notice
Under Fed.R.Civ.P. 8(a)(2), a complaint must include “a short and plain statement of the claim showing that the pleader is entitled to relief.” The Supreme Court has interpreted this to mean that the plaintiff must “give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Ashcroft v. Iqbal, 556 U.S. 662, 698, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Defendants argue that plaintiffs failed to comply with Twombly and Iqbal because they did not include in their amended complaint a list of every Wisconsin statute that could be an impediment to their ability to marry.
A threshold question is whether Twombly and Iqbal impose the requirement that defendants are suggesting. Generally, plaintiffs are required to plead facts showing that they have a plausible claim; they do not have to plead law. “[A] complaint need not pin plaintiff’s claim for relief to a precise legal theory. Rule 8(a)(2) of the Federal Rules of Civil Procedure generally requires only a plausible ‘short and plain’ statement of the plaintiff’s claim, not an exposition of his legal argument.” Skinner v. Switzer, –––U.S. ––––, ––––, 131 S.Ct. 1289, 1296, 179 L.Ed.2d 233 (2011). See also Alioto v. Town of Lisbon, 651 F.3d 715, 720–21 (7th Cir.2011) (“[W]e have stated repeatedly (and frequently) that a complaint need not plead legal theories.”); Hatmaker v. Memorial Medical Center, 619 F.3d 741, 743 (7th Cir.2010) (“Although Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, [556 U.S. 662] (2009), require that a complaint in federal court allege facts sufficient to show that the case is plausible ..., they do not undermine the principle that plaintiffs in federal courts are not required to plead legal theories.”); Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir.1992) (in determining whether complaint states claim upon which relief may be granted, court should not ask “whether the complaint points to the appropriate statute”). Defendants do not cite any cases in which a court interpreted Twombly or Iqbal as requiring the type of information they are seeking.
*3 In their opening brief, defendants say that a failure to identify each statute “unfairly disadvantages” them, dkt. # 67 at 14, but they do not explain how. Plaintiffs have identified in their complaint the conduct they believe
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Wolf v. Walker, Slip Copy (2014)
violates their rights, which is a refusal to authorize and recognize marriages between same-sex couples. Regardless which statutes that refusal implicates, the facts and law that defendants may use to support their position should be the same. In other words, defendants identify no reason why their ability to defend the constitutionality of the ban on marriage between same-sex couples is contingent on the list of statutes that underlies the ban. Further, they do not cite a single case in which a court required this degree of specificity in a complaint challenging a similar ban.
Distilled, defendants’ argument is that plaintiffs’ request for relief should be more detailed, an issue not addressed in Twombly or Iqbal. Under Fed.R.Civ.P. 8(a)(3), a complaint must contain “a demand for the relief sought,” but the Court of Appeals for Seventh Circuit has rejected the view that a complaint may be dismissed because of missing details in the request for relief. Bontkowski v. Smith, 305 F.3d 757, 762 (7th Cir.2002) (“[F]ailure to specify relief to which the plaintiff was entitled would not warrant dismissal under Rule 12(b)(6) (dismissal for failure to state a claim).”) In reaching this conclusion, the court relied on Fed.R.Civ.P. 54(c), which provides that a prevailing party may obtain any relief to which he’s entitled even if he “has not demanded such relief in [his] pleadings.” Accordingly, I conclude that defendants have failed to show that plaintiffs’ complaint should be dismissed for failing to list all the statutes that could be implicated by their claims.
Even if I assume that plaintiffs were required to identify in their complaint all the laws that they are challenging, defendants have not shown that the complaint is deficient in this respect. In their request for relief, plaintiffs say that they are challenging Wis. Const. § art. XIII, § 13 (which limits marriage to opposite-sex couples) as well as any provision in Wisconsin Statutes chapter 765 that refers to marriage as a relationship between a “husband” and a “wife” or otherwise uses sex-specific language. Defendants do not explain how that request fails to give them notice of the statutes being challenged.
It is true that the request for relief includes additional language to enjoin defendants from enforcing “any other sources of state law that operate to exclude same-sex couples from marriage or to deny recognition of the marriages of same-sex couples validly contracted in another jurisdiction.” Am. Cpt., dkt. # 26, at 42. Although the parties do not address this issue, there may be a plausible argument that the proposed injunction is not sufficiently specific to comply with Fed.R.Civ.P. 65(d)(1)(C), which states that an injunction must “describe in reasonable detail ... the act or acts restrained

or required.” Further, unless plaintiffs identify additional statutes that could prevent them from marrying in Wisconsin or from obtaining legal recognition of a marriage obtained in another state, it is not clear why any potential injunction would need to include the more general language plaintiffs propose. In any event, concerns about the language of a possible injunction are premature before the merits of plaintiffs’ claims have been resolved.
*4 In their reply brief, defendants argue that they need to know all of the statutes implicated by plaintiffs’ claims so that they can determine whether particular defendants “have enforcement authority for the statutes at issue.” Dfts.’ Reply Br., dkt. # 96, at 5. That argument overlaps with defendants’ argument regarding the personal involvement of defendants Chandler and Anderson, so I will address it below.
C. Defendants Chandler and Anderson
Defendant Chandler is Secretary of the Department of Revenue; defendant Anderson is State Registrar. Defendants argue that the amended complaint must be dismissed as to Chandler and Anderson because plaintiffs do not identify these defendants’ personal involvement in the alleged constitutional violation, as plaintiffs are required to do for a claim that arises under 42 U.S.C. § 1983.
Plaintiffs are correct that, when a plaintiff is not seeking damages, but only injunctive relief, “it is irrelevant whether the [defendant] participated in the alleged violations.” Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir.2011). However, that does not mean that plaintiffs can seek an injunction from anyone they wish. “[A] claim for injunctive relief can stand only against someone who has the authority to grant it.” Williams v. Doyle, 494 F.Supp.2d 1019, 1024 (W.D.Wis.2007). In other words, plaintiffs must identify some relief that a particular defendant can give them to justify his or her inclusion in the lawsuit.
With respect to defendant Anderson, plaintiffs have done that. Both sides note that he is required to “prescribe forms for blank applications, statement, consent of parents, affidavits, documents and other forms” related to obtaining a marriage license. Wis. Stat. § 765.20(1). Thus, if plaintiffs prevail on their claims, they could seek an injunction requiring Anderson to amend these documents so that they are inclusive of same-sex couples. Defendants’ unsupported statement in their reply brief
3

Wolf v. Walker, Slip Copy (2014)
that Anderson does not have “any role in enforcing any law that Plaintiffs say is unconstitutional,” Dfts.’ Reply Br., dkt. # 96, at 9, is simply incorrect. Defendants are correct that plaintiffs’ discussion of Anderson’s authority under § 765.20 is in plaintiffs’ brief rather than their complaint, but defendants do not explain why this matters. Even if I assume that plaintiffs should have put this information in their complaint, the Court of Appeals for the Seventh Circuit has stated that a party “may elaborate on her allegations [in a brief] so long as the elaborations are consistent with the pleading.” Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 555–56 (7th Cir.2012). Defendants do not identify any prejudice they will suffer on account of which document the explanation is found.
The situation is different for defendant Chandler, whose only alleged role is that he enforces tax statutes that give married couples certain benefits. Plaintiffs say that they are harmed by Chandler because they cannot receive those benefits, but they do not suggest that Chandler has any authority over decisions regarding which couples can marry and they do not identify any relief that they can obtain from Chandler in the context of this case. Presumably, if plaintiffs prevail in this lawsuit and obtain the right to marry, there would be no impediment to their claiming tax benefits that any other married couple could receive. Even if I assume that Chandler could try to obstruct plaintiffs’ ability to receive those benefits, it would be premature to issue an injunction in this case requiring Chandler to treat same-sex couples equally. The question in this case is limited to whether plaintiffs have a federal constitutional right to marry, so any injunction
	  

that issues in this case should be limited to public officials who are blocking plaintiffs’ access to marriage. In the event that plaintiffs’ right to marry is recognized, issues that may arise later will have to be resolved then. Accordingly, I am granting defendants’ motion to dismiss the complaint as to defendant Chandler.
*5 Defendants’ argument about personal involvement is limited to defendants Chandler and Anderson, so those are the only two defendants that I have considered in this order. However, plaintiffs are reminded that, if they prevail on their claims, it will not be enough to seek a general injunction to stop defendants from enforcing unconstitutional laws. Rather, under Fed.R.Civ.P. 65(d)(1)(C), they will have to propose an injunction that identifies the particular actions by each defendant that they wish to order or enjoin.
ORDER
IT IS ORDERED that the motion to dismiss filed by defendants Scott Walker, J.B. Van Hollen, Richard G. Chandler, Oskar Anderson, Gary King and John Chisholm, dkt. # 66, is GRANTED with respect to defendants Gary King, John Chisholm and Richard G. Chandler. The complaint is DISMISSED as to defendants King, Chisholm and Chandler. The motion is DENIED in all other respects discussed in this order.
	  
	  

4

 
 Case: 3:14-cv-00064-bbc Document #: 210 Filed: 07/07/15 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

VIRGINIA WOLF and CAROL SCHUMACHER, KAMI YOUNG and KARINA WILLES, ROY BADGER and GARTH WANGEMANN, CHARVONNE KEMP and MARIE CARLSON, JUDITH TRAMPF and KATHARINA HEYNING, SALUD GARCIA and PAMELA KLEISS, WILLIAM HURTUBISE and LESLIE PALMER, JOHANNES WALLMANN and KEITH BORDEN,

Plaintiffs, v.

ORDER 14-cv-64-bbc

SCOTT WALKER, in his official capacity as Governor of Wisconsin, BRAD SCHIMEL, in his official capacity as Attorney General of Wisconsin, OSKAR ANDERSON, in his official capacity as State Registrar of Wisconsin, JOSEPH CZARNEZKI, in his official capacity as Milwaukee County Clerk, WENDY CHRISTENSEN, in her official capacity as Racine County Clerk and SCOTT MCDONELL, in his official capacity as Dane County Clerk,
Defendants.1

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

In an order dated June 6, 2014, I declared that Wisconsin laws “that limit marriages

to a ‘husband’ and a ‘wife’ are unconstitutional as applied to same-sex couples.” Dkt. #118

1 Brad Schimel has been substituted for J.B. Van Hollen in accordance with Fed. R. Civ. P. 25.

Case: 3:14-cv-00064-bbc Document #: 210 Filed: 07/07/15 Page 2 of 8
at 87. The following week I issued an injunction that ordered defendant Scott Walker and his agents “to treat same-sex couples the same as different-sex couples in the context of processing a marriage license or determining the rights, protections, obligations or benefits of marriage.” Dkt. #134 at 13.
Now before the court is a motion filed by plaintiffs Kami Young and Karina Willes to enforce the injunction. Dkt. #201. (Although plaintiffs call their motion one for “clarification,” they do not ask the court to modify the injunction in any respect.) Plaintiffs contend that the Department of Health Services is treating them differently from heterosexual married couples by refusing to place both Young’s and Willes’s names on their child’s birth certificate. In particular, plaintiff says that both of their names should be listed on the certificate because Young gave birth after she and Willes married. Plaintiffs ask for an order “direct[ing] the equal application of Wisconsin’s presumption of parenthood for married couples [under Wis. Stat. § 891.41] to both different-sex and same-sex couples and the issuance of an original birth certificate [under Wis. Stat. § 69.14(1)(e)1] for [plaintiffs’ daughter] that includes both Kami and Karina as parents.” Dkt. #202 at 23.
Plaintiffs are raising an important issue that affects many families across the state of Wisconsin. In their motion, plaintiffs identify many benefits and rights that flow from being listed as a parent on a child’s birth certificate, so it is understandable that plaintiffs would want the same legal protections as any other similarly situated family. To plaintiffs, each day that passes without legal recognition of both parents leaves them more vulnerable than other families.
2

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Although I understand plaintiffs’ frustration, I cannot grant plaintiffs’ motion at this time. To begin with, as defendants point out, I declined expressly in the June 13, 2014 order to include specific language proposed by plaintiffs regarding the handling of birth certificates:
I am not including the additions to [the injunction] related to birth certificates that plaintiffs included with their reply brief. The new language is not responsive to any objections that defendants raised and plaintiffs do not explain why they did not include the language in any of their previous proposals. Even if I overlooked the untimeliness of the request, an injunction related to birth certificates seems to go beyond the scope of the issues in this case. Plaintiffs have not developed an argument that an amendment to procedures related to obtaining a birth certificate is implicit in the conclusion that a ban of same-sex marriage is unconstitutional. Any disputes that arise about birth certificates will have to be resolved in another forum. Dkt. #134 at 7. Plaintiffs say that their request falls within the general language of the injunction regarding equal treatment of same-sex and different-sex couples. However, plaintiffs devote little of their briefs to developing this argument. They choose to focus instead on explaining why they believe state employees are violating their constitutional rights, which seems to support a view that they are raising a new issue that falls outside the scope of the injunction. Further, they cite cases in which courts have held that the same-sex spouse of the birth mother has the right to be listed on a birth certificate under certain circumstances, but those cases involved new actions, decided years after the original challenge to the marriage ban. E.g., Gartner v. Iowa Dept. of Public Health, 830 N.W.2d 335, 344 (Iowa 2013); Della Corte v. Ramirez, 961 N.E.2d 601, 603 (Mass. App. Ct. 2012). (In fact, a similar case is pending in this court now. Torres v. Rhodes, No. 15-cv-288-bbc (W.D. Wis.) (requesting
3

Case: 3:14-cv-00064-bbc Document #: 210 Filed: 07/07/15 Page 4 of 8
injunction ordering state officials to “appl[y] . . . the spousal presumption of parentage to same-sex couples and issu[e] . . . two-parent birth certificates to same-sex spouses”).) Plaintiffs do not cite any cases in which a court resolved any issues regarding birth certificates in the context of the same lawsuit in which the court invalidated a ban on marriage between same-sex couples.
Plaintiffs also argue that the decision of the Court of Appeals for the Seventh Circuit in this case, Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014), requires this court to grant their motion, but that argument is a nonstarter. Plaintiffs did not challenge the scope of this court’s injunction on appeal and the court of appeals rejected defendants’ challenge to the injunction, so the only question before the court now is whether plaintiffs can show that defendants are violating the terms of this court’s injunction as written. In any event, the court of appeals did not discuss the issues of “parental presumption” or birth certificates.
In a supplemental memorandum, dkt. #209, plaintiffs make a similar argument about Obergefell v. Hodges, Nos. 14-556, 14-562, 14-571, 14-574, — U.S. — 2015 WL 2473451 (June 26, 2015), in which the Supreme Court held that individuals have a constitutional right to marry someone of the same sex. Although “birth and death certificates” were included in a list of “governmental rights, benefits, and responsibilities” that the Court said may accompany marriage, id. at *15, the Court did not resolve the issue plaintiffs raise. More important, Obergefell cannot answer the question whether defendants are violating an injunction issued more than a year ago.
Even if I assume that some issues regarding birth certificates could be encompassed
4

Case: 3:14-cv-00064-bbc Document #: 210 Filed: 07/07/15 Page 5 of 8
by the more general language in the injunction regarding equal treatment, plaintiffs’ motion raises questions that plaintiffs do not answer. The first question relates to Wis. Stat. § 891.41(1)(a), one of the statutes that plaintiffs say should be applied to them:
A man is presumed to be the natural father of a child if any of the following applies: (a) He and the child's natural mother are or have been married to each other and the child is conceived or born after marriage and before the granting of a decree of legal separation, annulment or divorce between the parties. It is not immediately apparent how this statute could be reinterpreted to apply to plaintiffs. It applies a presumption that a husband is the “natural father” of the child. However, in plaintiffs’ situation, it is already known that Willes is not a biological parent of the child, so applying a “presumption” that she is seems counterintuitive. Plaintiffs do not address this issue in their motion. The other statute that plaintiffs cite, Wis. Stat. § 69.14(1)(e)1, is a more comfortable fit: If the mother of a registrant under this section was married at any time from the conception to the birth of the registrant, the name of the husband of the mother shall be entered on the birth certificate as the legal father of the registrant. The name of the father entered under this subdivision may not be changed except by a proceeding under ch. 767. This provision refers to a “legal” parent rather than a “natural” parent, so it could apply more easily to plaintiffs’ situation. However, in their motion, plaintiffs seem to assume that § 69.14(1)(e)1 does not apply unless § 891.41 applies as well. Without any explanation from the parties regarding how and whether the two provisions interact, I would be reluctant to issue an injunction with potential implications beyond the parties in this case.
5

Case: 3:14-cv-00064-bbc Document #: 210 Filed: 07/07/15 Page 6 of 8
A second question is whether other statutes may provide a more appropriate comparison to plaintiffs’ situation. In particular, Wis. Stat. §§ 891.40 and 69.14(1)(g) address the circumstances under which a “husband” may be listed as a parent on a birth certificate when his wife became pregnant through artificial insemination. Although plaintiffs acknowledge that their child was conceived through artificial insemination, they do not discuss § 891.40 and 69.14(1)(g) in their briefs, let alone say whether they followed the procedure outlined in those provisions. This omission is particularly notable because two of the cases plaintiffs cite involved statutes that applied in the context of artificial insemination. Gartner, 830 N.W.2d at 344; Della Corte, 961 N.E.2d at 603.
The provisions regarding artificial insemination raise the question of what it means to provide equal treatment to plaintiffs and other similarly situated couples. Does equal treatment mean that all married lesbian couples are entitled to have both of their names on the birth certificate so long as one of them is the biological parent? Or in cases such as this one in which the married couple used artificial insemination, does equal treatment mean listing both parents only if they have followed the procedures outlined in §§ 891.40 and 69.14(1)(g)?
Another potential question is raised by the timing of the marriage and birth. Plaintiffs were married in Minnesota in 2013 and Young gave birth in March 2014, three months before this court issued its injunction. Although plaintiffs’ marriage was lawful under Minnesota law, it was not lawful under Wisconsin law at the time they were married or when their child was born. The statutes plaintiffs cite do not discuss how the state would
6

Case: 3:14-cv-00064-bbc Document #: 210 Filed: 07/07/15 Page 7 of 8
treat a similarly situated heterosexual couple. Although plaintiffs ask the court to order the state registrar “to issue a new original birth certificate nunc pro tunc,” they do not explain why a heterosexual couple would be entitled to a new birth certificate under Wisconsin law if the couple’s marriage was not recognized by the state until after the child was born.
Finally, plaintiffs’ request raises questions about the implications a ruling in their favor would have for gay male married couples with children. Plaintiffs argue persuasively in their briefs that they should not be required to go through the cumbersome process of adoption in order to become legal parents when heterosexual couples do not have to go through that process. However, the statutes plaintiff cites tie the parental presumption to the birth mother, which would seem to exclude any protections for the male spouse of a child’s biological father. Is that a violation of the injunction as well?
Because plaintiffs have not addressed these questions, I cannot grant their motion at this time. Of course, this conclusion should not be construed as an opinion on whether any of the statutes discussed in this order are constitutional as applied to same-sex couples. Plaintiffs may renew their motion if they wish, but they will have to address the questions raised in this order. Further, if plaintiffs are unable to obtain relief in this case, this does not mean that they have no remedy for the alleged violation of their rights. Although the proposed scope of the class action lawsuit does not include couples who gave birth before June 2014, plaintiffs are free to file their own standalone suit.
7

Case: 3:14-cv-00064-bbc Document #: 210 Filed: 07/07/15 Page 8 of 8
ORDER IT IS ORDERED that the motion filed by plaintiffs Kami Young and Karina Willes to enforce the June 13, 2014 injunction (which plaintiffs call “motion for clarification of the injunction order”), dkt. #201, is DENIED WITHOUT PREJUDICE. Entered this 6th day of July, 2015.
BY THE COURT: /s/ BARBARA B. CRABB District Judge
8

 
 Case: 3:14-cv-64 As of: 11/06/2017 12:14 AM CST 1 of 33
CLOSED,PROTECTIVE_ORDER
U.S. District Court Western District of Wisconsin (Madison) CIVIL DOCKET FOR CASE #: 3:14−cv−00064−bbc

Wolf, Virginia et al v. Walker, Scott et al Assigned to: District Judge Barbara B. Crabb Referred to: Magistrate Judge Stephen L. Crocker Case in other court: Seventh Circuit, 14−02266
7th Circuit, 14−02526 Cause: 28:1983 Civil Rights
Plaintiff

Date Filed: 02/03/2014 Date Terminated: 06/19/2014 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Virginia Wolf

represented by John Anthony Knight Roger Baldwin Foundation of ACLU, Inc. 180 N. Michigan Avenue Suite 2300 Chicago, IL 60601 312−201−9740 x335 Fax: 312−288−5225 Email: jknight@aclu−il.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurence J. Dupuis Aclu Of Wisconsin Foundation, Inc. 207 East Buffalo Street, Suite 325 Milwaukee, WI 53202 414−272−4032x12 Fax: 414−272−0182 Email: ldupuis@aclu−wi.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frank M. Dickerson , III Mayer Brown LLP 71 South Wacker Drive Chicago, IL 60606 312−782−0600 Fax: 312−701−7711 Email: fdickerson@mayerbrown.com ATTORNEY TO BE NOTICED

Gretchen E. Helfrich Mayer Brown LLP 71 S. Wacker Drive Chicago, IL 60606 312−782−0600 Fax: 312−701−7711 Email: ghelfrich@mayerbrown.com ATTORNEY TO BE NOTICED

Hans J. Germann Mayer Brown LLP 71 S. Wacker Drive Chicago, IL 60606 312−701−8792 Fax: 312−706−8169 Email: hgermann@mayerbrown.com ATTORNEY TO BE NOTICED

James D. Esseks American Civil Liberties Union Foundation

Case: 3:14-cv-64 As of: 11/06/2017 12:14 AM CST 2 of 33

125 Broad Street New York, NY 10004 212−549−2627 Fax: 212−549−2650 Email: jesseks@aclu.org ATTORNEY TO BE NOTICED

Kathleen Marie Przywara Mayer Brown LLP 71 S. Wacker Drive Chicago, IL 60606 312−782−0600 Fax: 312−701−7711 Email: kprzywara@mayerbrown.com ATTORNEY TO BE NOTICED

Linda X. Shi Mayer Brown LLP 71 S. Wacker Drive Chicago, IL 60606 312−782−0600 Fax: 312−701−7711 Email: lshi@mayerbrown.com ATTORNEY TO BE NOTICED

Plaintiff Carol Schumacher

represented by John Anthony Knight (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurence J. Dupuis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frank M. Dickerson , III (See above for address) ATTORNEY TO BE NOTICED

Gretchen E. Helfrich (See above for address) ATTORNEY TO BE NOTICED

Hans J. Germann (See above for address) ATTORNEY TO BE NOTICED

James D. Esseks (See above for address) ATTORNEY TO BE NOTICED

Kathleen Marie Przywara (See above for address) ATTORNEY TO BE NOTICED

Linda X. Shi (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Roy Badger

represented by John Anthony Knight (See above for address) LEAD ATTORNEY

Case: 3:14-cv-64 As of: 11/06/2017 12:14 AM CST 3 of 33

ATTORNEY TO BE NOTICED

Laurence J. Dupuis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frank M. Dickerson , III (See above for address) ATTORNEY TO BE NOTICED

Gretchen E. Helfrich (See above for address) ATTORNEY TO BE NOTICED

Hans J. Germann (See above for address) ATTORNEY TO BE NOTICED

James D. Esseks (See above for address) ATTORNEY TO BE NOTICED

Kathleen Marie Przywara (See above for address) ATTORNEY TO BE NOTICED

Linda X. Shi (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Garth Wangemann

represented by John Anthony Knight (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurence J. Dupuis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frank M. Dickerson , III (See above for address) ATTORNEY TO BE NOTICED

Gretchen E. Helfrich (See above for address) ATTORNEY TO BE NOTICED

Hans J. Germann (See above for address) ATTORNEY TO BE NOTICED

James D. Esseks (See above for address) ATTORNEY TO BE NOTICED

Kathleen Marie Przywara (See above for address) ATTORNEY TO BE NOTICED

Linda X. Shi (See above for address)

Case: 3:14-cv-64 As of: 11/06/2017 12:14 AM CST 4 of 33

ATTORNEY TO BE NOTICED

Plaintiff Charvonne Kemp

represented by John Anthony Knight (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurence J. Dupuis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frank M. Dickerson , III (See above for address) ATTORNEY TO BE NOTICED

Gretchen E. Helfrich (See above for address) ATTORNEY TO BE NOTICED

Hans J. Germann (See above for address) ATTORNEY TO BE NOTICED

James D. Esseks (See above for address) ATTORNEY TO BE NOTICED

Kathleen Marie Przywara (See above for address) ATTORNEY TO BE NOTICED

Linda X. Shi (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Marie Carlson

represented by John Anthony Knight (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurence J. Dupuis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frank M. Dickerson , III (See above for address) ATTORNEY TO BE NOTICED

Gretchen E. Helfrich (See above for address) ATTORNEY TO BE NOTICED

Hans J. Germann (See above for address) ATTORNEY TO BE NOTICED

James D. Esseks (See above for address) ATTORNEY TO BE NOTICED

Case: 3:14-cv-64 As of: 11/06/2017 12:14 AM CST 5 of 33

Kathleen Marie Przywara (See above for address) ATTORNEY TO BE NOTICED

Linda X. Shi (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Judith Trampf

represented by John Anthony Knight (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurence J. Dupuis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frank M. Dickerson , III (See above for address) ATTORNEY TO BE NOTICED

Gretchen E. Helfrich (See above for address) ATTORNEY TO BE NOTICED

Hans J. Germann (See above for address) ATTORNEY TO BE NOTICED

James D. Esseks (See above for address) ATTORNEY TO BE NOTICED

Kathleen Marie Przywara (See above for address) ATTORNEY TO BE NOTICED

Linda X. Shi (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Katharina Heyning

represented by John Anthony Knight (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurence J. Dupuis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frank M. Dickerson , III (See above for address) ATTORNEY TO BE NOTICED

Gretchen E. Helfrich (See above for address) ATTORNEY TO BE NOTICED

Hans J. Germann (See above for address)

Case: 3:14-cv-64 As of: 11/06/2017 12:14 AM CST 6 of 33

ATTORNEY TO BE NOTICED

James D. Esseks (See above for address) ATTORNEY TO BE NOTICED

Kathleen Marie Przywara (See above for address) ATTORNEY TO BE NOTICED

Linda X. Shi (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Karina Willes

represented by John Anthony Knight (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frank M. Dickerson , III (See above for address) ATTORNEY TO BE NOTICED

Gretchen E. Helfrich (See above for address) ATTORNEY TO BE NOTICED

Hans J. Germann (See above for address) ATTORNEY TO BE NOTICED

James D. Esseks (See above for address) ATTORNEY TO BE NOTICED

Kathleen Marie Przywara (See above for address) ATTORNEY TO BE NOTICED

Linda X. Shi (See above for address) ATTORNEY TO BE NOTICED

Laurence J. Dupuis (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Johannes Wallman

represented by John Anthony Knight (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frank M. Dickerson , III (See above for address) ATTORNEY TO BE NOTICED

Gretchen E. Helfrich (See above for address) ATTORNEY TO BE NOTICED

Hans J. Germann (See above for address)

Case: 3:14-cv-64 As of: 11/06/2017 12:14 AM CST 7 of 33

ATTORNEY TO BE NOTICED

James D. Esseks (See above for address) ATTORNEY TO BE NOTICED

Kathleen Marie Przywara (See above for address) ATTORNEY TO BE NOTICED

Linda X. Shi (See above for address) ATTORNEY TO BE NOTICED

Laurence J. Dupuis (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Salud Garcia

represented by John Anthony Knight (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frank M. Dickerson , III (See above for address) ATTORNEY TO BE NOTICED

Gretchen E. Helfrich (See above for address) ATTORNEY TO BE NOTICED

Hans J. Germann (See above for address) ATTORNEY TO BE NOTICED

James D. Esseks (See above for address) ATTORNEY TO BE NOTICED

Kathleen Marie Przywara (See above for address) ATTORNEY TO BE NOTICED

Linda X. Shi (See above for address) ATTORNEY TO BE NOTICED

Laurence J. Dupuis (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Pamela Kleiss

represented by John Anthony Knight (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frank M. Dickerson , III (See above for address) ATTORNEY TO BE NOTICED

Gretchen E. Helfrich (See above for address)

Case: 3:14-cv-64 As of: 11/06/2017 12:14 AM CST 8 of 33

ATTORNEY TO BE NOTICED

Hans J. Germann (See above for address) ATTORNEY TO BE NOTICED

James D. Esseks (See above for address) ATTORNEY TO BE NOTICED

Kathleen Marie Przywara (See above for address) ATTORNEY TO BE NOTICED

Linda X. Shi (See above for address) ATTORNEY TO BE NOTICED

Laurence J. Dupuis (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Kami Young

represented by John Anthony Knight (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frank M. Dickerson , III (See above for address) ATTORNEY TO BE NOTICED

Gretchen E. Helfrich (See above for address) ATTORNEY TO BE NOTICED

Hans J. Germann (See above for address) ATTORNEY TO BE NOTICED

James D. Esseks (See above for address) ATTORNEY TO BE NOTICED

Kathleen Marie Przywara (See above for address) ATTORNEY TO BE NOTICED

Linda X. Shi (See above for address) ATTORNEY TO BE NOTICED

Laurence J. Dupuis (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Keith Borden

represented by John Anthony Knight (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frank M. Dickerson , III (See above for address)

Case: 3:14-cv-64 As of: 11/06/2017 12:14 AM CST 9 of 33

ATTORNEY TO BE NOTICED

Gretchen E. Helfrich (See above for address) ATTORNEY TO BE NOTICED

Hans J. Germann (See above for address) ATTORNEY TO BE NOTICED

James D. Esseks (See above for address) ATTORNEY TO BE NOTICED

Kathleen Marie Przywara (See above for address) ATTORNEY TO BE NOTICED

Linda X. Shi (See above for address) ATTORNEY TO BE NOTICED

Laurence J. Dupuis (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Leslie Palmer

represented by John Anthony Knight (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frank M. Dickerson , III (See above for address) ATTORNEY TO BE NOTICED

Gretchen E. Helfrich (See above for address) ATTORNEY TO BE NOTICED

Hans J. Germann (See above for address) ATTORNEY TO BE NOTICED

James D. Esseks (See above for address) ATTORNEY TO BE NOTICED

Kathleen Marie Przywara (See above for address) ATTORNEY TO BE NOTICED

Linda X. Shi (See above for address) ATTORNEY TO BE NOTICED

Laurence J. Dupuis (See above for address) ATTORNEY TO BE NOTICED

Plaintiff William Hurtubise

represented by John Anthony Knight (See above for address) LEAD ATTORNEY

Case: 3:14-cv-64 As of: 11/06/2017 12:14 AM CST 10 of 33
ATTORNEY TO BE NOTICED
Frank M. Dickerson , III (See above for address) ATTORNEY TO BE NOTICED
Gretchen E. Helfrich (See above for address) ATTORNEY TO BE NOTICED
Hans J. Germann (See above for address) ATTORNEY TO BE NOTICED
James D. Esseks (See above for address) ATTORNEY TO BE NOTICED
Kathleen Marie Przywara (See above for address) ATTORNEY TO BE NOTICED
Linda X. Shi (See above for address) ATTORNEY TO BE NOTICED
Laurence J. Dupuis (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Scott Walker in his official capacity as Governor of Wisconsin

represented by Clayton P. Kawski Wisconsin Department of Justice P.O. Box 7857 Madison, WI 53707 (608) 266−7477 Fax: (608) 267−2223 Email: kawskicp@doj.state.wi.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Charles Bellavia Wisconsin Department of Justice P.O. Box 7857 Madison, WI 53707−7857 (608) 266−8690 Fax: (608) 267−2223 Email: bellaviatc@doj.state.wi.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy Craig Samuelson Wisconsin Department of Justice 17 W. Main Street P.O. Box 7857 Madison, WI 53707−7857 608−266−3542 Fax: 608−261−7991 Email: samuelsontc@doj.state.wi.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:14-cv-64 As of: 11/06/2017 12:14 AM CST 11 of 33

Defendant J.B. Van Hollen in his official capacity as Attorney General of Wisconsin
Defendant Richard G. Chandler in his official capacity as Secretary of Revenue of Wisconsin TERMINATED: 04/30/2014
Defendant Oskar Anderson in his official capacity as State Registrar of Wisconsin
Defendant Gary King in his official capacity as Eau Claire County District Attorney TERMINATED: 04/30/2014

represented by Clayton P. Kawski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Charles Bellavia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy Craig Samuelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Clayton P. Kawski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Charles Bellavia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy Craig Samuelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Clayton P. Kawski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Charles Bellavia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy Craig Samuelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Clayton P. Kawski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Charles Bellavia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy Craig Samuelson (See above for address) LEAD ATTORNEY

Case: 3:14-cv-64 As of: 11/06/2017 12:14 AM CST 12 of 33

ATTORNEY TO BE NOTICED

Defendant
Joseph Czarnezki in his official capacity as Milwaukee County Clerk

represented by Paul Bargren Milwaukee County Corporation Counsel 901 N. 9th Street Room 303 Milwaukee, WI 53233 Email: paul.bargren@milwaukeecountywi.gov ATTORNEY TO BE NOTICED

Defendant
Scott McDonell in his official capacity as Dane County Clerk

represented by David Gault Dane County Corporation Counsel 210 Martin Luther King, Jr. Blvd. Room 419 Madison, WI 53703 608−266−4355 Fax: 608−267−1556 Email: gault@countyofdane.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
John T. Chisholm in his official capacity as Milwaukee County District Attorney TERMINATED: 04/30/2014

represented by Thomas Charles Bellavia (See above for address) ATTORNEY TO BE NOTICED
Timothy Craig Samuelson (See above for address) ATTORNEY TO BE NOTICED

Defendant
Wendy Christensen in her official capacity as Racine County Clerk

represented by John Paul Serketich Racine County Corporation Counsel 730 Wisconsin Avenue Racine, WI 53403 262−636−3758 Fax: 262−636−3549 Email: john.serketich@goracine.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Julaine K Appling

represented by Michael D. Dean Michael D. Dean, Llc 20975 Swenson Drive, Suite 125 Waukesha, WI 53186 262−798−8044 Fax: 262−798−8045 Email: miked@michaelddeanllc.com ATTORNEY TO BE NOTICED

Amicus Jo Egelhoff

represented by Michael D. Dean (See above for address) ATTORNEY TO BE NOTICED

Amicus Jaren E Hiller

represented by Michael D. Dean (See above for address)

Case: 3:14-cv-64 As of: 11/06/2017 12:14 AM CST 13 of 33

ATTORNEY TO BE NOTICED

Amicus Richard Kessenich

represented by Michael D. Dean (See above for address) ATTORNEY TO BE NOTICED

Amicus Edmund L Webster

represented by Michael D. Dean (See above for address) ATTORNEY TO BE NOTICED

Date Filed 02/03/2014
02/03/2014 02/03/2014 02/03/2014 02/03/2014
02/03/2014 02/04/2014 02/04/2014 02/04/2014

# Docket Text
1 COMPLAINT for Declaratory & Injunctive Relief against All Defendants. ( Filing fee $ 400 receipt number 0758−1292054.), filed by All Plaintiffs. (Attachments: # 1 JS−44 Civil Cover Sheet, # 2 Summons Gary King, # 3 Summons JB Van Hollen, # 4 Summons Joseph Czarnezki, # 5 Summons Oskar Anderson, # 6 Summons Richard Chandler, # 7 Summons Scott McDonell, # 8 Summons Scott Walker) (Dupuis, Laurence) (Entered: 02/03/2014)
Case randomly assigned to Magistrate Judge Stephen L. Crocker. (krj) (Entered: 02/03/2014)
Standard attachments for Magistrate Judge Stephen L. Crocker required to be served on all parties with summons or waiver of service: Corporate Disclosure Statement, Order Regarding Assignment of Civil Cases, Notice of Assignment to a Magistrate Judge and Consent/Request for Reassignment, Order on Dispositive Motions. (krj) (Entered: 02/03/2014)
2 Notice of Appearance filed by John Anthony Knight for Plaintiffs Roy Badger, Marie Carlson, Katharina Heyning, Charvonne Kemp, Carol Schumacher, Judith Trampf, Garth Wangemann, Virginia Wolf (Knight, John) (Entered: 02/03/2014)
3 Summons Issued as to All Defendants (main document − Oskar Anderson). (Attachments: # 1 Summons Richard Chandler, # 2 Summons Joseph Czarnezki, # 3 Summons Gary King, # 4 Summons Scott McDonell, # 5 Summons J.B. Van Hollen, # 6 Summons Scott Walker) (krj) (Entered: 02/03/2014)
4 Motion to Admit James D. Esseks Pro Hac Vice. ( Pro Hac Vice fee $ 50 receipt number 0758−1292267.) by Plaintiffs Roy Badger, Marie Carlson, Katharina Heyning, Charvonne Kemp, Carol Schumacher, Judith Trampf, Garth Wangemann, Virginia Wolf. (Esseks, James) (Entered: 02/03/2014)
5 ** TEXT ONLY ORDER ** ORDER granting 4 Motion to Admit James D. Esseks Pro Hac Vice. Signed by Magistrate Judge Peter A. Oppeneer on 2/4/14. (krj) (Entered: 02/04/2014)
6 Motion to Admit Gretchen E. Helfrich Pro Hac Vice. ( Pro Hac Vice fee $ 50 receipt number 0758−1293066.) by Plaintiffs Roy Badger, Marie Carlson, Katharina Heyning, Charvonne Kemp, Carol Schumacher, Judith Trampf, Garth Wangemann, Virginia Wolf. (Helfrich, Gretchen) (Entered: 02/04/2014)
7 ** TEXT ONLY ORDER ** ORDER granting 6 Motion to Admit Gretchen E. Helfrich Pro Hac Vice. Signed by Magistrate Judge Peter A. Oppeneer on 2/4/14. (krj) (Entered: 02/04/2014)

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02/05/2014 02/06/2014
02/06/2014 02/06/2014 02/07/2014
02/10/2014 02/18/2014 02/19/2014 02/19/2014 02/19/2014 02/19/2014 02/19/2014 02/19/2014 02/19/2014 02/21/2014 02/21/2014 02/21/2014
02/26/2014 02/27/2014

8 Notice of Appearance filed by Gretchen E. Helfrich for Plaintiffs Roy Badger, Marie Carlson, Katharina Heyning, Charvonne Kemp, Carol Schumacher, Judith Trampf, Garth Wangemann, Virginia Wolf (Helfrich, Gretchen) (Entered: 02/05/2014)
9 Motion to Admit Frank M. Dickerson, III Pro Hac Vice. ( Pro Hac Vice fee $ 50 receipt number 0758−1294040.) by Plaintiffs Roy Badger, Marie Carlson, Katharina Heyning, Charvonne Kemp, Carol Schumacher, Judith Trampf, Garth Wangemann, Virginia Wolf. (Dickerson, Frank) (Entered: 02/06/2014)
10 Notice of Appearance filed by Frank M. Dickerson, III for Plaintiffs Roy Badger, Marie Carlson, Katharina Heyning, Charvonne Kemp, Carol Schumacher, Judith Trampf, Garth Wangemann, Virginia Wolf (Dickerson, Frank) (Entered: 02/06/2014)
11 ** TEXT ONLY ORDER ** ORDER granting 9 Motion to Admit Frank M. Dickerson III Pro Hac Vice. Signed by Magistrate Judge Peter A. Oppeneer on 2/6/14. (krj) (Entered: 02/06/2014)
12 Motion to Admit Hans J. Germann Pro Hac Vice. ( Pro Hac Vice fee $ 50 receipt number 0758−1294838.) by Plaintiffs Roy Badger, Marie Carlson, Katharina Heyning, Charvonne Kemp, Carol Schumacher, Judith Trampf, Garth Wangemann, Virginia Wolf. (Germann, Hans) (Entered: 02/07/2014)
13 ** TEXT ONLY ORDER ** ORDER granting 12 Motion to Admit Hans J. Germann Pro Hac Vice. Signed by Magistrate Judge Peter A. Oppeneer on 2/10/14. (krj) (Entered: 02/10/2014)
14 ANSWER by Defendant Scott McDonell. (Gault, David) (Entered: 02/18/2014)
15 Summons Returned Executed. Oskar Anderson served on 2/6/2014, answer due 2/27/2014. (Dupuis, Laurence) (Entered: 02/19/2014)
16 Summons Returned Executed. Richard G. Chandler served on 2/6/2014, answer due 2/27/2014. (Dupuis, Laurence) (Entered: 02/19/2014)
17 Summons Returned Executed. Joseph Czarnezki served on 2/6/2014, answer due 2/27/2014. (Dupuis, Laurence) (Entered: 02/19/2014)
18 Summons Returned Executed. Gary King served on 2/13/2014, answer due 3/6/2014. (Dupuis, Laurence) (Entered: 02/19/2014)
19 Summons Returned Executed. Scott McDonell served on 2/6/2014, answer due 2/27/2014. (Dupuis, Laurence) (Entered: 02/19/2014)
20 Summons Returned Executed. J.B. Van Hollen served on 2/6/2014, answer due 2/27/2014. (Dupuis, Laurence) (Entered: 02/19/2014)
21 Summons Returned Executed. Scott Walker served on 2/6/2014, answer due 2/27/2014. (Dupuis, Laurence) (Entered: 02/19/2014)
22 Notice of Appearance filed by Timothy Craig Samuelson for Defendants Oskar Anderson, Richard G. Chandler, Gary King, J.B. Van Hollen, Scott Walker (Samuelson, Timothy) (Entered: 02/21/2014)
23 Unopposed Motion for Extension of Time to Respond to Complaint by Defendants Oskar Anderson, Richard G. Chandler, Gary King, J.B. Van Hollen, Scott Walker. (Samuelson, Timothy) Modified on 2/25/2014. (lak) (Entered: 02/21/2014)
24 ** TEXT ONLY ORDER ** ORDER granting 23 Motion for Extension of Time. Defendants Anderson, Chandler, King, Van Hollen, and Walker answers due 3/20/14. Signed by Magistrate Judge Stephen L. Crocker on 2/21/14. (krj) (Entered: 02/21/2014)
25 ANSWER by Defendant Joseph Czarnezki. (Bargren, Paul) (Entered: 02/26/2014)
Set Telephone Pretrial or Status Conference: Telephone Pretrial Conference set for 3/28/2014 at 01:00 PM before Magistrate Judge Stephen L. Crocker. Counsel for Plaintiff responsible for setting up the call to chambers at (608) 264−5153. [Standing Order Governing Preliminary Pretrial Conference attached] (krj) (Entered: 02/27/2014)

Case: 3:14-cv-64 As of: 11/06/2017 12:14 AM CST 15 of 33

02/27/2014 02/27/2014 02/27/2014 02/27/2014 02/27/2014 02/27/2014
02/27/2014 02/27/2014 02/27/2014 02/27/2014 02/27/2014

Case randomly reassigned to District Judge Barbara B. Crabb and Magistrate Judge Stephen L. Crocker. (cak) (Entered: 02/27/2014)
26 AMENDED COMPLAINT (First) against All Defendants, filed by All Plaintiffs. (Attachments: # 1 Summons to John Chisholm, # 2 Summons to Wendy Christensen) (Dupuis, Laurence) Modified on 2/28/2014. (lak) (Entered: 02/27/2014)
27 MOTION FOR PRELIMINARY INJUNCTION by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young. (Dupuis, Laurence) (Entered: 02/27/2014)
28 Proposed Findings of Fact filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 27 Motion for Preliminary Injunction, (Dupuis, Laurence) (Entered: 02/27/2014)
29 Brief in Support of 27 Motion for Preliminary Injunction, by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young (Dupuis, Laurence) (Entered: 02/27/2014)
30 Declaration of Laurence J. Dupuis filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 27 Motion for Preliminary Injunction, (Attachments: # 1 Exhibit 1 − Cosponsorship Memo, # 2 Exhibit 2 − Drafter's File, # 3 Exhibit 3 − Vote Yes for Marriage Flyer, # 4 Exhibit − Power Point Presentation) (Dupuis, Laurence) Modified on 2/28/2014. (lak) (Entered: 02/27/2014)
31 Declaration of Roy Badger filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 27 Motion for Preliminary Injunction, (Dupuis, Laurence) (Entered: 02/27/2014)
32 Declaration of Keith Borden filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 27 Motion for Preliminary Injunction, (Dupuis, Laurence) (Entered: 02/27/2014)
33 Declaration of Marie Carlson filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 27 Motion for Preliminary Injunction, (Dupuis, Laurence) (Entered: 02/27/2014)
34 Declaration of Salud Garcia filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 27 Motion for Preliminary Injunction, (Dupuis, Laurence) (Entered: 02/27/2014)
35 Declaration of Katharina Heyning filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 27 Motion for Preliminary Injunction, (Dupuis, Laurence) (Entered: 02/27/2014)

Case: 3:14-cv-64 As of: 11/06/2017 12:14 AM CST 16 of 33

02/27/2014 02/27/2014 02/27/2014 02/27/2014 02/27/2014 02/27/2014 02/27/2014 02/27/2014 02/27/2014 02/27/2014 02/27/2014

36 Declaration of William Hurtubise filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 27 Motion for Preliminary Injunction, (Dupuis, Laurence) (Entered: 02/27/2014)
37 Declaration of Charvonne Kemp filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 27 Motion for Preliminary Injunction, (Dupuis, Laurence) (Entered: 02/27/2014)
38 Declaration of Pamela Kleiss filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 27 Motion for Preliminary Injunction, (Dupuis, Laurence) (Entered: 02/27/2014)
39 Declaration of Leslie Palmer filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 27 Motion for Preliminary Injunction, (Dupuis, Laurence) (Entered: 02/27/2014)
40 Declaration of Carol Schumacher filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 27 Motion for Preliminary Injunction. (Dupuis, Laurence) Modified on 2/28/2014. (lak) (Entered: 02/27/2014)
41 Declaration of Judith Trampf filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 27 Motion for Preliminary Injunction, (Dupuis, Laurence) (Entered: 02/27/2014)
42 Declaration of Johannes Wallmann filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 27 Motion for Preliminary Injunction, (Dupuis, Laurence) (Entered: 02/27/2014)
43 Declaration of Garth Wangemann filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 27 Motion for Preliminary Injunction, (Dupuis, Laurence) (Entered: 02/27/2014)
44 Declaration of Karina Willes filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 27 Motion for Preliminary Injunction, (Dupuis, Laurence) (Entered: 02/27/2014)
45 Declaration of Virginia Wolf filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 27 Motion for Preliminary Injunction, (Dupuis, Laurence) (Entered: 02/27/2014)
46 Declaration of Kami Young filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 27 Motion for Preliminary Injunction, (Dupuis, Laurence) (Entered: 02/27/2014)

Case: 3:14-cv-64 As of: 11/06/2017 12:14 AM CST 17 of 33

02/28/2014 02/28/2014 02/28/2014 02/28/2014 02/28/2014 03/03/2014 03/03/2014 03/04/2014
03/11/2014 03/11/2014
03/12/2014 03/12/2014
03/14/2014 03/14/2014 03/14/2014 03/17/2014

Set/Reset Deadlines as to 27 MOTION FOR PRELIMINARY INJUNCTION . Procedure to be followed on Motions for Injunctive Relief before Judge Crabb attached. Brief in Opposition due 3/21/2014 by noon. Injunctive Hearing set for 3/27/2014 at 09:00 AM. (krj) (Entered: 02/28/2014)
47 Summons Issued as to John T. Chisholm (main document), Wendy Christensen. (Attachments: # 1 Summons − Christensen) (krj) (Entered: 02/28/2014)
48 Summons Returned Executed. John T. Chisholm served on 2/28/2014, answer due 3/21/2014. (Dupuis, Laurence) (Entered: 02/28/2014)
49 Summons Returned Executed. Wendy Christensen served on 2/28/2014, answer due 3/21/2014. (Dupuis, Laurence) (Entered: 02/28/2014)
50 Summons Returned Executed as to John T. Chisholm. Also see 48 and 51 . (Dupuis, Laurence) Modified on 3/3/2014. (lak) (Entered: 02/28/2014)
51 Affidavit of Service by Plaintiff as to John T. Chisholm. Also see 47 . (Helfrich, Gretchen) Modified on 3/3/2014. (lak) (Entered: 03/03/2014)
52 Affidavit of Service by Plaintiff as to Wendy Christensen. Also see 49 . (Helfrich, Gretchen) Modified on 3/3/2014. (lak) (Entered: 03/03/2014)
53 ORDER that plaintiffs have until 3/11/14 to inform court whether they wish to withdraw 27 motion for preliminary injunction in favor of expedited schedule. If motion not withdrawn, plaintiffs have until 3/11/14 to file supplemental memorandum. If no response received, court will deny 27 motion for preliminary injunction and case will proceed to summary judgment on expedited schedule. Signed by District Judge Barbara B. Crabb on 3/4/14. (krj) (Entered: 03/04/2014)
54 Notice of Appearance filed by Timothy Craig Samuelson for Defendant John T. Chisholm (Samuelson, Timothy) (Entered: 03/11/2014)
55 Response to 53 Order, re 27 Motion for Preliminary Injunction, filed by Karina Willes, Kami Young, Katharina Heyning, Pamela Kleiss, Judith Trampf, Marie Carlson, Leslie Palmer, Keith Borden, Charvonne Kemp, Garth Wangemann, Carol Schumacher, Virginia Wolf, Salud Garcia, Johannes Wallman, William Huturbise, Roy Badger (Attachments: # 1 Exhibit 1 − Stipulation) (Helfrich, Gretchen) Modified on 3/12/2014 (krj). (Entered: 03/11/2014)
56 ORDER denying as moot 27 Motion for Preliminary Injunction; 3/27/14 hearing canceled. Signed by District Judge Barbara B. Crabb on 3/12/14. (krj) (Entered: 03/12/2014)
Set Telephone Pretrial or Status Conference: Telephone Pretrial Conference set for 3/18/2014 at 09:00 AM before Magistrate Judge Stephen L. Crocker. Counsel for Plaintiff responsible for setting up the call to chambers at (608) 264−5153. [Standing Order Governing Preliminary Pretrial Conference attached] (krj) (Entered: 03/12/2014)
57 Motion to Stay and to Abstain by State Defendants Oskar Anderson, Richard G. Chandler, John T. Chisholm, Gary King, J.B. Van Hollen, Scott Walker. Response due 3/21/2014. (Bellavia, Thomas) Modified on 3/16/2014. (lak) (Entered: 03/14/2014)
58 Brief in Support of 57 Motion to Stay and to Abstain by State Defendants Oskar Anderson, Richard G. Chandler, John T. Chisholm, Gary King, J.B. Van Hollen, Scott Walker. (Bellavia, Thomas) Modified on 3/16/2014. (lak) (Entered: 03/14/2014)
Set/Reset Briefing Deadlines as to 57 Motion to Stay State Defendants' Notice of Motion and Motion to Abstain and Stay. Brief in Opposition due 3/18/2014 by 4:00 p.m. Brief in Reply due 3/20/2014 by 4:00 p.m. (krj) (Entered: 03/14/2014)
59 Joint Preliminary Pretrial Conference Report by Defendants Oskar Anderson, Richard G. Chandler, John T. Chisholm, Wendy Christensen, Joseph Czarnezki, Gary King, Scott McDonell, J.B. Van Hollen, Scott Walker, Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes

Case: 3:14-cv-64 As of: 11/06/2017 12:14 AM CST 18 of 33

03/18/2014 03/18/2014
03/18/2014 03/19/2014 03/20/2014 03/20/2014 03/20/2014
03/20/2014 03/20/2014 03/21/2014 03/21/2014 03/21/2014 03/24/2014
03/24/2014

Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young (Helfrich, Gretchen) (Entered: 03/17/2014)
Minute Entry for proceedings held before Magistrate Judge Stephen L. Crocker: Telephone Preliminary Pretrial Conference held on 3/18/2014 [:35] (cak) (Entered: 03/18/2014)
60 Brief in Opposition by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 57 Motion to Stay filed by Oskar Anderson, Scott Walker, J.B. Van Hollen, John T. Chisholm, Gary King, Richard G. Chandler (Helfrich, Gretchen) (Entered: 03/18/2014)
61 Amended Answer to 26 Amended Complaint by Defendant Scott McDonell. (Gault, David) (Entered: 03/18/2014)
62 Brief in Opposition by Defendants Scott McDonell and Joseph Czarnezki re: 57 Motion to Stay and to Abstain. (Gault, David) Modified on 3/20/2014. (lak) (Entered: 03/19/2014)
63 ANSWER to Amended Complaint by Defendant Joseph Czarnezki. (Attachments: # 1 Certificate of Service) (Bargren, Paul) (Entered: 03/20/2014)
64 Brief in Reply by Defendants Oskar Anderson, Richard G. Chandler, John T. Chisholm, Gary King, J.B. Van Hollen, Scott Walker in Support of 57 Motion to Stay. (Bellavia, Thomas) Modified on 3/21/2014. (lak) (Entered: 03/20/2014)
65 Transcript of telephonic preliminary pretrial conference, held 3/18/14 before Magistrate Judge Stephen L. Crocker. Court Reporter: LS. Please review the court policy regarding electronic transcripts: see Electronic Transcript Instructions and Notice of Intent to Request Redaction. (krj) (Entered: 03/20/2014)
66 MOTION TO DISMISS Plaintiffs' Amended Complaint by Defendants Oskar Anderson, Richard G. Chandler, John T. Chisholm, Gary King, J.B. Van Hollen, Scott Walker. Brief in Opposition due 4/10/2014. Brief in Reply due 4/21/2014. (Samuelson, Timothy) Modified on 3/21/2014. (lak) (Entered: 03/20/2014)
67 Brief in Support of 66 Motion to Dismiss, by Defendants Oskar Anderson, Richard G. Chandler, John T. Chisholm, Gary King, J.B. Van Hollen, Scott Walker. (Samuelson, Timothy) Modified on 3/21/2014. (lak) (Entered: 03/20/2014)
68 Pretrial Conference Order − Final Pretrial Submissions due 7/28/2014. Court Trial set for 8/25/2014 at 09:00 AM. Signed by Magistrate Judge Stephen L. Crocker on 3/21/2014. (voc) (Entered: 03/21/2014)
Set/Reset Deadlines as to 66 MOTION TO DISMISS Notice of Motion and Motion to Dismiss Plaintiffs' Amended Complaint. Brief in Reply due 4/25/2014. (voc) (Entered: 03/21/2014)
69 ANSWER to Amended Complaint by Defendant Wendy Christensen. (Serketich, John) (Entered: 03/21/2014)
70 MOTION FOR SUMMARY JUDGMENT by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young. Brief in Opposition due 5/9/2014. Brief in Reply due 5/19/2014. (Helfrich, Gretchen) Modified briefing schedule on 3/24/2014 (krj). (Entered: 03/24/2014)
71 Brief in Support of 70 Motion for Summary Judgment, by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young (Helfrich, Gretchen) (Entered: 03/24/2014)

Case: 3:14-cv-64 As of: 11/06/2017 12:14 AM CST 19 of 33

03/24/2014 03/24/2014
03/24/2014 03/24/2014 03/24/2014 03/24/2014 03/24/2014 03/24/2014 03/24/2014 03/24/2014 03/24/2014

72 Proposed Findings of Fact filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 70 Motion for Summary Judgment, (Helfrich, Gretchen) (Entered: 03/24/2014)
73 Declaration of Laurence J. Dupuis filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 70 Motion for Summary Judgment, (Attachments: # 1 Exhibit 1 − Memorandum to all Wisconsin Legislators, # 2 Exhibit 2 − Wisconsin Legislative Reference Bureau's Drafting File for LRB−4072, # 3 Exhibit 3 − Flyer Entitled "Vote Yes For Marriage", # 4 Exhibit 4 − Wisconsin Family Research Institute Power Point Presentation) (Helfrich, Gretchen) Modified on 3/25/2014. Added exhibit descriptions. (lak) (Entered: 03/24/2014)
74 Declaration of Virginia Wolf filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 70 Motion for Summary Judgment, (Helfrich, Gretchen) (Entered: 03/24/2014)
75 Declaration of Carol Schumacher filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 70 Motion for Summary Judgment, (Helfrich, Gretchen) (Entered: 03/24/2014)
Set/Reset Briefing Deadlines per 68 pretrial conference order as to 70 MOTION FOR SUMMARY JUDGMENT. Brief in Opposition due 5/9/2014. Brief in Reply due 5/19/2014. (krj) (Entered: 03/24/2014)
76 Declaration of Kami Young filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 70 Motion for Summary Judgment, (Helfrich, Gretchen) (Entered: 03/24/2014)
77 Declaration of Karina Willes filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 70 Motion for Summary Judgment, (Helfrich, Gretchen) (Entered: 03/24/2014)
78 Declaration of Roy Badger filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 70 Motion for Summary Judgment, (Helfrich, Gretchen) (Entered: 03/24/2014)
79 Declaration of Garth Wangemann filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 70 Motion for Summary Judgment, (Helfrich, Gretchen) (Entered: 03/24/2014)
80 Declaration of Charvonne Kemp filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 70 Motion for Summary Judgment, (Helfrich, Gretchen) (Entered: 03/24/2014)
81 Declaration of Marie Carlson filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman,

Case: 3:14-cv-64 As of: 11/06/2017 12:14 AM CST 20 of 33

03/24/2014 03/24/2014 03/24/2014 03/24/2014 03/24/2014 03/24/2014 03/24/2014 03/24/2014 03/24/2014
03/24/2014 03/24/2014

Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 70 Motion for Summary Judgment, (Helfrich, Gretchen) (Entered: 03/24/2014)
82 Declaration of Judith Trampf filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 70 Motion for Summary Judgment, (Helfrich, Gretchen) (Entered: 03/24/2014)
83 Declaration of Katharina Heyning filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 70 Motion for Summary Judgment, (Helfrich, Gretchen) (Entered: 03/24/2014)
84 Declaration of Salud Garcia filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 70 Motion for Summary Judgment, (Helfrich, Gretchen) (Entered: 03/24/2014)
85 Declaration of Pamela Kleiss filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 70 Motion for Summary Judgment, (Helfrich, Gretchen) (Entered: 03/24/2014)
86 Declaration of William Hurtubise filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 70 Motion for Summary Judgment, (Helfrich, Gretchen) (Entered: 03/24/2014)
87 Declaration of Leslie "Dean" Palmer filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 70 Motion for Summary Judgment, (Helfrich, Gretchen) (Entered: 03/24/2014)
88 Declaration of Johannes Wallmann filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 70 Motion for Summary Judgment, (Helfrich, Gretchen) (Entered: 03/24/2014)
89 Declaration of Keith Borden filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 70 Motion for Summary Judgment, (Helfrich, Gretchen) (Entered: 03/24/2014)
90 Joint Stipulation Regarding Authenticity of Certain Documents by Defendants Oskar Anderson, Richard G. Chandler, John T. Chisholm, Wendy Christensen, Joseph Czarnezki, Gary King, Scott McDonell, J.B. Van Hollen, Scott Walker, Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young. (Helfrich, Gretchen) Modified on 3/25/2014. (lak) (Entered: 03/24/2014)
91 ** TEXT ONLY ORDER ** ORDER accepting and entering 90 Stipulation Regarding Authenticity of Certain Documents. Signed by Magistrate Judge Stephen L. Crocker on 3/24/14. (krj) (Entered: 03/24/2014)
92 ORDER denying 57 Motion to Stay. Signed by District Judge Barbara B. Crabb on 3/24/14. (krj) (Entered: 03/24/2014)

Case: 3:14-cv-64 As of: 11/06/2017 12:14 AM CST 21 of 33

04/10/2014
04/10/2014 04/10/2014
04/25/2014 04/30/2014 05/05/2014 05/05/2014 05/06/2014 05/07/2014 05/08/2014 05/09/2014
05/09/2014 05/09/2014

93 Joint Motion for Protective Order by Defendants Oskar Anderson, Richard G. Chandler, John T. Chisholm, Wendy Christensen, Joseph Czarnezki, Gary King, Scott McDonell, J.B. Van Hollen, Scott Walker, Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young. (Attachments: # 1 Text of Proposed Order) (Helfrich, Gretchen) (Entered: 04/10/2014)
94 ** TEXT ONLY ORDER ** 93 Joint Motion for Protective Order is accepted and entered. Signed by Magistrate Judge Stephen L. Crocker on 4/10/14. (jat) (Entered: 04/10/2014)
95 Brief in Opposition by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 66 Motion to Dismiss, filed by Oskar Anderson, Scott Walker, J.B. Van Hollen, John T. Chisholm, Gary King, Richard G. Chandler (Helfrich, Gretchen) (Entered: 04/10/2014)
96 Brief in Reply by Defendants Oskar Anderson, Richard G. Chandler, John T. Chisholm, Gary King, J.B. Van Hollen, Scott Walker in Support of 66 Motion to Dismiss, (Samuelson, Timothy) (Entered: 04/25/2014)
97 ORDER granting in part and denying in part 66 Motion to Dismiss; complaint dismissed as to defendants Gary King, John Chisholm and Richard Chandler; motion denied in all other respects. Signed by District Judge Barbara B. Crabb on 4/30/14. (krj) (Entered: 04/30/2014)
98 Notice of Appearance filed by Michael D. Dean for Amicus Parties Julaine K Appling, Jo Egelhoff, Jaren E Hiller, Richard Kessenich, Edmund L Webster. (Dean, Michael) (Entered: 05/05/2014)
99 Motion for Leave to File Amici Curiae Brief by Amicus Julaine K Appling. (Dean, Michael) (Entered: 05/05/2014)
Set/Reset Briefing Deadlines as to 99 Motion for Leave to File Amici Curiae Brief. Brief in Opposition due 5/8/2014. (jm/krj) (Entered: 05/06/2014)
100 Brief in Opposition by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 99 Motion for Leave to File filed by Julaine K Appling (Dupuis, Laurence) (Entered: 05/07/2014)
101 Response Stating No Opposition by Defendants Oskar Anderson, J.B. Van Hollen, Scott Walker re: 99 Motion for Leave to File filed by Julaine K Appling (Samuelson, Timothy) (Entered: 05/08/2014)
102 Brief in Opposition by Defendants Oskar Anderson, J.B. Van Hollen, Scott Walker re: 70 Motion for Summary Judgment, filed by Karina Willes, Kami Young, Katharina Heyning, Pamela Kleiss, Judith Trampf, Marie Carlson, Leslie Palmer, Keith Borden, Charvonne Kemp, Garth Wangemann, Carol Schumacher, Virginia Wolf, Salud Garcia, Johannes Wallman, William Huturbise, Roy Badger (Attachments: # 1 Appendix to Response of State Defendants, # 2 Appendix to Response of State Defendants, # 3 Appendix to Response of State Defendants) (Samuelson, Timothy) Requested attorney refile with exhibits attached separately and named on 5/12/2014 (jaf). Modified on 5/14/2014 (jaf). (Entered: 05/09/2014)
103 Proposed Findings of Fact filed by Defendants Oskar Anderson, J.B. Van Hollen, Scott Walker re: 70 Motion for Summary Judgment, (Samuelson, Timothy) (Entered: 05/09/2014)
104 Declaration of Timothy C. Samuelson re 102 Brief in Opposition,, (Attachments: # 1 Exhibit Exh. A−−Plaintiffs' Responses to State Defendants' First Set of RFA) (Samuelson, Timothy) (Entered: 05/09/2014)

Case: 3:14-cv-64 As of: 11/06/2017 12:14 AM CST 22 of 33

05/09/2014 05/09/2014 05/12/2014 05/12/2014 05/14/2014 05/14/2014
05/19/2014 05/19/2014

105 Response to Proposed Findings of Fact filed by Defendants Oskar Anderson, J.B. Van Hollen, Scott Walker re: 70 Motion for Summary Judgment, (Samuelson, Timothy) (Entered: 05/09/2014)
106 ORDER granting 99 Motion for Leave to File amicus brief. Amicus brief due 5/14/2014. Plaintiffs reply brief due 5/28/2014. Signed by District Judge Barbara B. Crabb on 5/9/14. (krj) (Entered: 05/09/2014)
107 Letter Stating No Reply to be Filed by Defendant Joseph Czarnezki re: 70 Motion for Summary Judgment, filed by Karina Willes, Kami Young, Katharina Heyning, Pamela Kleiss, Judith Trampf, Marie Carlson, Leslie Palmer, Keith Borden, Charvonne Kemp, Garth Wangemann, Carol Schumacher, Virginia Wolf, Salud Garcia, Johannes Wallman, William Huturbise, Roy Badger (Bargren, Paul) (Entered: 05/12/2014)
108 Letter Stating No Reply to be Filed by Defendant Scott McDonell re: 70 Motion for Summary Judgment, filed by Karina Willes, Kami Young, Katharina Heyning, Pamela Kleiss, Judith Trampf, Marie Carlson, Leslie Palmer, Keith Borden, Charvonne Kemp, Garth Wangemann, Carol Schumacher, Virginia Wolf, Salud Garcia, Johannes Wallman, William Huturbise, Roy Badger (Gault, David) (Entered: 05/12/2014)
109 Notice by Amicus Parties Julaine K Appling, Jo Egelhoff, Jaren E Hiller, Richard Kessenich, Edmund L Webster Amici Curiae Brief in Support of Defendants. (Dean, Michael) (Entered: 05/14/2014)
110 Exhibit to 102 Brief in Opposition,, filed by Oskar Anderson, Scott Walker, J.B. Van Hollen (Attachments: # 1 App. 1 − LRB, 06−12, # 2 App. 2 − 1983 Wisconsin Act 186, # 3 App. 3 − 2003 Joint Resolution 66, # 4 App. 4 − 2003 Joint Resolution 66, History, # 5 App. 5 − 2005 Joint Resolution 53, # 6 App. 6 − 2005 Joint Resolution 53, History, # 7 App. 7 − Wis. Elec. Bd., 11/7/06, # 8 App. 8 − 2013 Joint Resolution 109, # 9 App. 9 − 2013 Joint Resolution 74, # 10 App. 10 − Pub. Policy Poll., 7/20/12, # 11 App. 11 − Marquette Law School Poll, 3/26/14, # 12 App. 12 − WPR News 4/9/14, # 13 App. 13 − Gallup Poll, # 14 App. 14 − Nate Silver, 3/26/13, # 15 App. 15 − Minn. Sec. St., 12/7/12, # 16 App. 16 − Pres. Clinton DOMA Stmt., # 17 App. 17 − New York Times, 5/9/12, # 18 App. 18 − Associated Press, 5/11/13, # 19 App. 19 − Hollingsworth transcript, 46:9−19, # 20 App. 20 − Allen, More Heat Than Light, # 21 App. 21 − Marks, Same−sex parenting, # 22 App. 22 − Moore, Marriage from a Child's Perspective, # 23 App. 23 − Manning, Adolescent Well−Being, # 24 App. 24 − Allen, Does Divorce Law Affect the Divorce Rate?, # 25 App. 25 − Osmundson, I Was Born this Way, # 26 App. 26 − Plaintiffs' Responses to Requests for Admission) (Samuelson, Timothy) (Entered: 05/14/2014)
111 Brief in Reply by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young in Support of 70 Motion for Summary Judgment. (Helfrich, Gretchen) (Entered: 05/19/2014)
112 Reply in Support of Proposed Findings of Fact filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 70 Motion for Summary Judgment, (Reply to State Defendants' Response to Plaintiffs' Proposed Findings of Fact.) (Attachments: # 1 Exhibit A − Pltf. Kami Young's Responses to State Defts.' 1st Set of

Case: 3:14-cv-64 As of: 11/06/2017 12:14 AM CST 23 of 33

05/19/2014
05/23/2014 05/23/2014
05/23/2014 05/30/2014
06/06/2014

Interrogatories, # 2 Exhibit B − Pltf. Karina Willes' Responses to State Defts.' 1st Set of Interrogatories, # 3 Exhibit C − Pltf. Karina Willes' Responses to State Defts.' 2nd Set of Interrogatories, # 4 Exhibit D − Pltf. Kami Young's Responses to State Defts.' 2nd Set of Interrogatories, # 5 Exhibit E − Pltf. William Hurtubise's Responses to State Defts.' 1st Set of Interrogatories, # 6 Exhibit F − Pltf. Leslie Dean Palmer's Responses to State Defts.' 1st Set of Interrogatories, # 7 Exhibit G − Pltf. William Hurtubise's Responses to State Defts.' 2nd Set of Interrogatories, # 8 Exhibit H − Pltf. Leslie Dean Palmer's Responses to State Defts.' 2nd Set of Interrogatories, # 9 Exhibit I − Pltf. Virginia Wolf's Responses to State Defts.' 2nd Set of Interrogatories, # 10 Exhibit J − Pltf. Carol Schumacher's Responses to State Defts.' 2nd Set of Interrogatories, # 11 Exhibit K − Pltf. Salud Garcia's Responses to State Defts.' 2nd Set of Interrogatories, # 12 Exhibit L − Pltf. Palmela Kleiss' Responses to State Defts.' 2nd Set of Interrogatories, # 13 Exhibit M − Pltf. Johannes Wallmann's Amended Responses to State Defts.' 1st Set of Interrogatories, # 14 Exhibit N − Pltf. Johannes Wallmann's Responses to State Defts.' 2nd Set of Interrogatories, # 15 Exhibit O − Pltf. Keith Borden's Amended Responses to State Defts.' 1st Set of Interrogatories, # 16 Exhibit P − Pltf. Keith Borden's Responses to State Defts.' 2nd Set of Interrogatories, # 17 Exhibit Q − Pltf. Marie Carlon's Responses to State Defts.' 2nd Set of Interrogatories) (Helfrich, Gretchen) (Entered: 05/19/2014)
113 Response to Proposed Findings of Fact filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 70 Motion for Summary Judgment, (Response to State Defendants' Proposed Findings of Fact in Opposition to Plaintiffs' Motion For Summary Judgment.) (Helfrich, Gretchen) (Entered: 05/19/2014)
114 Motion to Stay Contingent by Defendants Oskar Anderson, J.B. Van Hollen, Scott Walker. Response due 5/30/2014. (Samuelson, Timothy) (Entered: 05/23/2014)
115 Declaration of Timothy C. Samuelson filed by Defendants Oskar Anderson, J.B. Van Hollen, Scott Walker re: 114 Motion to Stay (Attachments: # 1 Exhibit A − Latta v. Otter, No. 14−35420 (9th Cir. May 20, 2014), # 2 Exhibit B − Tanco v. Haslam, No. 14−5297 (6th Cir. Apr. 25, 2014), # 3 Exhibit C − DeBoer v. Snyder, No. 14−1341 (6th Cir. Mar. 25, 2014)) (Samuelson, Timothy) (Entered: 05/23/2014)
116 Brief in Support of 114 Motion to Stay Contingent by Defendants Oskar Anderson, J.B. Van Hollen, Scott Walker (Samuelson, Timothy) (Entered: 05/23/2014)
117 Brief in Opposition by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Huturbise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 114 Motion to Stay filed by Oskar Anderson, Scott Walker, J.B. Van Hollen (Dickerson, Frank) (Entered: 05/30/2014)
118 ORDER denying 66 Motion to Dismiss; granting 70 Motion for Summary Judgment; declaring that art. XIII § 13 of Wisconsin Constitution violates plaintiffs' fundamental right to marry and right to equal protection of laws under Fourteenth Amendment to the U.S. Constitution. Any WI statutory provisions that limit marriages to a "husband"

Case: 3:14-cv-64 As of: 11/06/2017 12:14 AM CST 24 of 33

06/06/2014 06/06/2014 06/09/2014 06/09/2014
06/09/2014 06/09/2014 06/09/2014 06/09/2014
06/09/2014 06/09/2014 06/09/2014 06/09/2014
06/10/2014 06/10/2014

and a "wife," are unconstitutional as applied to same−sex couples. Plaintiffs have until 6/16/14 to submit proposed injunction; defendants response due one week thereafter; plaintiffs reply due one week thereafter. Signed by District Judge Barbara B. Crabb on 6/6/14. (krj) (Main Document 118 replaced to correct typographical error on 6/6/2014) (krj). (Entered: 06/06/2014)
Briefing set re: injunction complying with FRCP 65(d)(1)(C). Motions due 6/16/2014. (krj) (Entered: 06/06/2014)
119 Emergency Motion to Stay Dkt. 118 by Defendants Oskar Anderson, J.B. Van Hollen, Scott Walker. Response due 6/13/2014. (Samuelson, Timothy) (Entered: 06/06/2014)
Set Telephone Motion Hearing as to 119 Emergency Motion to Stay Dkt. 118. Telephone Motion Hearing set for 6/9/2014 at 01:00 PM before Judge Barbara B. Crabb. Counsel for Defendants responsible for setting up the call to chambers at (608) 264−5447. (voc/jm) (Entered: 06/09/2014)
120 NOTICE OF APPEAL by Defendants Oskar Anderson, J.B. Van Hollen, Scott Walker as to 118 Order on Motion to Dismiss, Order on Motion for Summary Judgment,,,,. Filing fee of $ 505, receipt number 0758−1363488 paid. Docketing Statement filed. (Attachments: # 1 Exhibit District Court's June 6, 2014 Opinion and order, # 2 Docketing Statement) (Samuelson, Timothy) (Entered: 06/09/2014)
121 Docketing Statement re 120 Notice of Appeal,. (Samuelson, Timothy) (Entered: 06/09/2014)
Reset Deadlines as to 119 Emergency Motion to Stay Dkt. 118. Motion Hearing set for 6/9/2014 at 01:00 PM to be held in Courtroom 250. Counsel may still participate by phone. (rep) (Entered: 06/09/2014)
122 Appeal Information Packet. (krj) (Entered: 06/09/2014)
123 Transmission of Notice of Appeal, Docketing Statement, Appeal Information Sheet, Docket Sheet and Order to Seventh Circuit Court of Appeals re 120 Notice of Appeal. (Attachments: # 1 appeal information sheet, # 2 docketing statement, # 3 order, # 4 docket sheet) (krj) (Entered: 06/09/2014)
USCA Case Number 14−2266 for 120 Notice of Appeal, filed by Oskar Anderson, Scott Walker, J.B. Van Hollen. (krj) (Entered: 06/09/2014)
124 Minute Entry for proceedings held before District Judge Barbara B. Crabb: Motion Hearing held on 6/9/2014 re 119 Emergency Motion to Stay Dkt. 118 filed by Oskar Anderson, Scott Walker, J.B. Van Hollen [:28] (Court Reporter LS) (elc) (Entered: 06/09/2014)
125 ORDER denying 119 emergency motion to stay. Signed by District Judge Barbara B. Crabb on 6/9/14. (krj) (Entered: 06/09/2014)
126 Motion for entry of permanent injunction by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Hurtubise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young. (Attachments: # 1 Proposed Permanet Injunction) (Helfrich, Gretchen) Modified text on 6/10/2014 (krj). (Entered: 06/09/2014)
Set/Reset Deadlines as to 126 Motion for entry of permanent injunction. Brief in Opposition due 6/16/2014. Brief in Reply due 6/23/2014. (krj) (Entered: 06/10/2014)
127 Transcript of motion hearing, held 6/9/14 before Judge Barbara B. Crabb. Court Reporter: LS. Please review the court policy regarding electronic transcripts: see Electronic Transcript Instructions and Notice of Intent to Request Redaction. (krj) (Entered: 06/10/2014)

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06/11/2014 06/11/2014 06/11/2014 06/11/2014 06/12/2014 06/13/2014 06/13/2014
06/18/2014 06/19/2014

128 Brief in Opposition by Defendants Oskar Anderson, J.B. Van Hollen, Scott Walker re: 126 Motion for Miscellaneous Relief, filed by Keith Borden, Charvonne Kemp, Carol Schumacher, Roy Badger, Katharina Heyning, Kami Young, Karina Willes, Judith Trampf, Pamela Kleiss, Marie Carlson, William Hurtubise, Leslie Palmer, Garth Wangemann, Virginia Wolf, Salud Garcia, Johannes Wallman (Samuelson, Timothy) (Entered: 06/11/2014)
129 ** TEXT ONLY ORDER ** Because both sides have moved quickly in filing materials on plaintiffs' proposed injunction, the hearing on the injunction scheduled for June 19, 2014 is moved to Friday, June 13, 2014 at 1:00 p.m. in Courtroom 250. Counsel for plaintiffs is responsible for setting up a call for any parties who wish to appear by phone. If plaintiffs wish to file a reply brief before the hearing, they may have until 4:00 p.m. on Thursday, June 12, 2014, to do so. Signed by District Judge Barbara B. Crabb on 6/11/14. (krj) (Entered: 06/11/2014)
130 Response Stating No Opposition by Defendant Scott McDonell re: 126 Motion for Miscellaneous Relief, filed by Keith Borden, Charvonne Kemp, Carol Schumacher, Roy Badger, Katharina Heyning, Kami Young, Karina Willes, Judith Trampf, Pamela Kleiss, Marie Carlson, William Hurtubise, Leslie Palmer, Garth Wangemann, Virginia Wolf, Salud Garcia, Johannes Wallman (Gault, David) (Entered: 06/11/2014)
131 Response Stating No Opposition by Defendant Joseph Czarnezki re: 126 Motion for Miscellaneous Relief, filed by Keith Borden, Charvonne Kemp, Carol Schumacher, Roy Badger, Katharina Heyning, Kami Young, Karina Willes, Judith Trampf, Pamela Kleiss, Marie Carlson, William Hurtubise, Leslie Palmer, Garth Wangemann, Virginia Wolf, Salud Garcia, Johannes Wallman (Bargren, Paul) (Entered: 06/11/2014)
132 Brief in Reply by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Hurtubise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young in Support of 126 Motion for Miscellaneous Relief, Injunction (Attachments: # 1 Exhibit Exhibit A − Revised Proposed Injunction) (Helfrich, Gretchen) (Entered: 06/12/2014)
133 Minute Entry for proceedings held before District Judge Barbara B. Crabb: Motion Hearing held on 6/13/2014 re 126 Motion for entry of permanent injunction. [:40] (Court Reporter CS.) (voc) (Entered: 06/13/2014)
134 ORDER that Wendy Christensen, Joseph Czarnezki and Scott McDonell and their officers, agents, servants, employees and attorneys, and those acting in concert with them are permanently enjoined from denying a marriage license to a couple because both applicants for the license are the same sex. Oskar Anderson and his officers, agents, servants, employees and attorneys, and those acting in concert with them, are permanently enjoined to accept for registration, assign a date of acceptance and index and preserve original marriage documents and original divorce reports for couples of the samesex on the same terms as for couples of different sexes under Wis. Stat. § 69.03(5). Oskar Anderson and his officers, agents, servants, employees and attorneys, and those acting in concert with them, are permanently enjoined to prescribe, furnish and distribute, under Wis. Stat. § 69.03(8), forms required for marriages under Wis. Stat. ch. 69 and Wis. Stat. § 765.20 that permit couples of the same sex to marry on the same terms as couples of different sexes. Scott Walker is permanently enjoined to direct all department heads, independent agency heads, or other executive officers appointed by the Governor under Wis. Stat. ch. 15 and their officers, agents, servants, employees and attorneys, and those acting in concert with them, to treat same−sex couples the same as different sex couples in context of processing a marriage license or determining rights, protections, obligations or benefits of marriage. Motion to Stay all relief in case 114 granted. Signed by District Judge Barbara B. Crabb on 6/13/14. (krj) (Entered: 06/13/2014)
135 ORDER from USCA dismissing appeal as to 120 Notice of Appeal, filed by Oskar Anderson, Scott Walker, J.B. Van Hollen. No record to be returned. (Attachments: # 1 Mandate) (krj) (Entered: 06/18/2014)
136 JUDGMENT entered in favor of Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Hurtubise, Charvonne Kemp, Pamela

Case: 3:14-cv-64 As of: 11/06/2017 12:14 AM CST 26 of 33

06/26/2014
07/02/2014 07/03/2014 07/08/2014 07/09/2014
07/10/2014 07/10/2014 07/10/2014

Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, and Kami Young and defendants Gary King, John Chisholm and Richard Chandler dismissing the case. (BBC / PAO). (krj) (Entered: 06/19/2014)
137 Joint Motion for Extension of Time to hold in abeyance proceedings with respect to attorney fees & costs by Defendants Oskar Anderson, Richard G. Chandler, John T. Chisholm, Wendy Christensen, Joseph Czarnezki, Gary King, Scott McDonell, J.B. Van Hollen, Scott Walker, Amicus Parties Julaine K Appling, Jo Egelhoff, Jaren E Hiller, Richard Kessenich, Edmund L Webster, Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Hurtubise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young. Motions referred to Magistrate Judge Stephen L. Crocker. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit − Stipulation) (Dupuis, Laurence) Modified on 6/29/2014. (lak) (Entered: 06/26/2014)
138 ORDER granting 137 Motion to hold in abeyance proceedings with respect to attorney fees & costs. Signed by District Judge Barbara B. Crabb on 7/2/14. (jat) (Entered: 07/02/2014)
139 Motion to Lift Stay re 134 Order on Motion to Stay, "Plaintiffs' Motion to Immediately Lift Stay and Request for Expedited Consideration" by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Hurtubise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young. Motions referred to Magistrate Judge Stephen L. Crocker. Response due 7/10/2014. (Dickerson, Frank) Modified on 7/3/2014. (lak) (Entered: 07/03/2014)
140 Motion to Expedite Briefing on 139 Motion to Lift Stay by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Hurtubise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young. Motions referred to Magistrate Judge Stephen L. Crocker. Response due 7/15/2014. (Helfrich, Gretchen) Modified on 7/8/2014. (lak) (Entered: 07/08/2014)
141 ** TEXT ONLY ORDER ** On July 8, 2014, plaintiffs moved (dkt. 140 ) to expedite the seven−day response deadline set for their July 3 motion (dkt. 139 ) to lift the stay. Plaintiffs also seem concerned that the court's computer appears to have assigned that motion to the magistrate judge instead of the presiding district judge. The CM/ECF system automatically references the magistrate judge, even on motions to be decided by the district judge. That said, Judge Crabb is aware of plaintiff's motion to lift the stay and she is not inclined to expedite the briefing. Therefore, that motion, dkt. 140 is denied. Judge Crabb will decide the motion to lift the stay (dkt. 139 ) when it is under advisal pursuant to the previously−set July 10, 2014 response deadline. Signed by Magistrate Judge Stephen L. Crocker on 7/9/14. (jat) (Entered: 07/09/2014)
142 Brief in Opposition by Defendants Oskar Anderson, J.B. Van Hollen, Scott Walker re: 139 Motion to Lift Stay,, filed by Keith Borden, Charvonne Kemp, Carol Schumacher, Roy Badger, Katharina Heyning, Kami Young, Karina Willes, Judith Trampf, Pamela Kleiss, Marie Carlson, William Hurtubise, Leslie Palmer, Garth Wangemann, Virginia Wolf, Salud Garcia, Johannes Wallman. (Samuelson, Timothy) (Entered: 07/10/2014)
143 NOTICE OF APPEAL by Defendants Oskar Anderson, J.B. Van Hollen, Scott Walker as to 136 Judgment, 118 Order on Motion to Dismiss, Order on Motion for Summary Judgment. Filing fee of $ 505, receipt number 0758−1380028 paid. Docketing Statement filed. (Attachments: # 1 Exhibit − Judgment, # 2 Exhibit − Order, # 3 Docketing Statement) (Samuelson, Timothy) (Entered: 07/10/2014)
144 Docketing Statement re 143 Notice of Appeal. (Samuelson, Timothy) (Entered: 07/10/2014)

Case: 3:14-cv-64 As of: 11/06/2017 12:14 AM CST 27 of 33

07/11/2014 07/11/2014
07/11/2014 07/11/2014 07/21/2014 07/23/2014 07/29/2014 07/29/2014 09/17/2014 09/18/2014
09/18/2014
09/19/2014 10/07/2014

145 Appeal Information Packet. (lak) (Entered: 07/11/2014)
146 Transmission of Notice of Appeal, Appeal Information Sheet, Docketing Statement, Order, Judgment and Docket Sheet Seventh Circuit Court of Appeals re: 143 Notice of Appeal, (Attachments: # 1 Appeal Information Sheet, # 2 Docketing Statement, # 3 Order, # 4 Judgment, # 5 Docket Sheet) (lak) (Entered: 07/11/2014)
USCA Case Number 14−2526 for 143 Notice of Appeal, filed by Oskar Anderson, Scott Walker, J.B. Van Hollen. (jat) (Entered: 07/11/2014)
147 ** TEXT ONLY ORDER ** In light of defendants' notice of appeal, dkt. 143 , plaintiffs' motion to lift the stay, dkt. 139 , is DENIED as moot. Signed by District Judge Barbara B. Crabb on 7/11/14. (jat) (Entered: 07/11/2014)
148 Transcript Request Form by Defendants Oskar Anderson, J.B. Van Hollen, Scott Walker. (Samuelson, Timothy) (Entered: 07/21/2014)
149 Certified and Transmitted Record on Appeal to US Court of Appeals re 143 Notice of Appeal. (Attachments: # 1 Certification) (lak) (Entered: 07/23/2014)
150 Court Reporter Certification of Seventh Circuit Transcript Information Sheet re 143 Notice of Appeal, (jat) (Entered: 07/29/2014)
151 Transcript of Motion Hearing, held 6/13/14 before Judge Barbara B. Crabb. Court Reporter: CS. Please review the court policy regarding electronic transcripts: see Electronic Transcript Instructions and Notice of Intent to Request Redaction. (jat) (Entered: 07/30/2014)
152 ORDER from USCA: Mandate in this appeal is STAYED pending final disposition of the petition for writ of certiorari as to 143 Notice of Appeal, filed by Oskar Anderson, Scott Walker, J.B. Van Hollen (jat) (Entered: 09/17/2014)
153 Joint Motion for Extension of Time holding in abeyance fee and cost proceedings pending resolution in Supreme Court by Defendants Oskar Anderson, Richard G. Chandler, John T. Chisholm, Wendy Christensen, Joseph Czarnezki, Gary King, Scott McDonell, J.B. Van Hollen, Scott Walker, Amicus Parties Julaine K Appling, Jo Egelhoff, Jaren E Hiller, Richard Kessenich, Edmund L Webster, Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Hurtubise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young. Motions referred to Magistrate Judge Stephen L. Crocker. (Attachments: # 1 Text of Proposed Order) (Dupuis, Laurence) (Entered: 09/18/2014)
154 Stipulation to Hold in Abeyance Attorney Fee & Cost Proceedings Pending Resolution in Supreme Court by Defendants Oskar Anderson, Richard G. Chandler, John T. Chisholm, Wendy Christensen, Joseph Czarnezki, Gary King, Scott McDonell, J.B. Van Hollen, Scott Walker, Amicus Parties Julaine K Appling, Jo Egelhoff, Jaren E Hiller, Richard Kessenich, Edmund L Webster, Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Hurtubise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young. (Dupuis, Laurence) (Entered: 09/18/2014)
155 ORDER granting 153 Joint Motion for an order holding in abeyance fee and cost proceedings pending resolution in Supreme Court. Signed by District Judge Barbara B. Crabb on 9/19/14. (jat) (Entered: 09/19/2014)
156 JUDGMENT from USCA affirming district court with costs as to 143 Notice of Appeal, filed by Oskar Anderson, Scott Walker, J.B. Van Hollen. No record to be returned. (Attachments: # 1 Mandate,

Case: 3:14-cv-64 As of: 11/06/2017 12:14 AM CST 28 of 33

10/07/2014 10/30/2014
10/30/2014
11/03/2014 11/18/2014 11/18/2014 11/24/2014 12/12/2014 12/12/2014 12/12/2014 12/12/2014

# 2 Appellate Opinion) (jat) (Entered: 10/07/2014)
157 Memorandum: The stay is lifted. The injunction in the June 13 order is now in force. Signed by District Judge Barbara B. Crabb on 10/7/14. (jat) (Entered: 10/07/2014)
158 Joint Motion for Extension of Time to file motion for fees and costs and bill of costs by Defendants Oskar Anderson, Richard G. Chandler, John T. Chisholm, Wendy Christensen, Joseph Czarnezki, Gary King, Scott McDonell, J.B. Van Hollen, Scott Walker, Amicus Parties Julaine K Appling, Jo Egelhoff, Jaren E Hiller, Richard Kessenich, Edmund L Webster, Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Hurtubise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young. Motions referred to Magistrate Judge Stephen L. Crocker. (Attachments: # 1 Text of Proposed Order) (Dupuis, Laurence) (Entered: 10/30/2014)
159 Stipulation to Extend Time to File Motion for Fees & Costs and Bill of Costs by Defendants Oskar Anderson, Richard G. Chandler, John T. Chisholm, Wendy Christensen, Joseph Czarnezki, Gary King, Scott McDonell, J.B. Van Hollen, Scott Walker, Amicus Parties Julaine K Appling, Jo Egelhoff, Jaren E Hiller, Richard Kessenich, Edmund L Webster, Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Hurtubise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young. (Dupuis, Laurence) Modified on 10/31/2014. (lak) (Entered: 10/30/2014)
160 ORDER granting 158 Motion for Extension of Time. Signed by District Judge Barbara B. Crabb on 11/3/14. (jat) (Entered: 11/03/2014)
161 ** TEXT ONLY ORDER ** Time to File Motion for Fees & Costs and Bill of Costs is extended to 12/12/2014. Signed by Magistrate Judge Peter A. Oppeneer on 11/18/14. (jat) (Entered: 11/18/2014)
Set Hearings: Settlement Conference set for 11/24/2014 at 1:00 PM in courtroom 360 before Magistrate Peter Oppeneer. Any submissions of the parties are to be received at clerkofcourt@wiwd.uscourts.gov no later than noon on 11/21/2014. (jaf) (Entered: 11/18/2014)
162 Minute Order. Proceedings held before Judge Magistrate Judge Peter A. Oppeneer: Settlement Conference held on 11/24/2014 [2:00] during which the parties did not reach a final settlement. (jaf) (Entered: 11/24/2014)
163 Motion for Attorney Fees, Costs and Expenses by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Hurtubise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young. (Knight, John) (Entered: 12/12/2014)
164 Brief in Support of 163 Motion for Attorney Fees, Costs and Expenses by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Hurtubise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young. (Knight, John) (Entered: 12/12/2014)
165 Declaration of Anne L. Clark filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Hurtubise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 163 Motion for Attorney Fees. (Knight, John) (Entered: 12/12/2014)
166 Declaration of Laurence J. Dupuis filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Hurtubise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 163 Motion for Attorney Fees, (Attachments: # 1 Exhibit A − Dupuis Curriculum Vitae,

Case: 3:14-cv-64 As of: 11/06/2017 12:14 AM CST 29 of 33

12/12/2014 12/12/2014 12/12/2014 12/12/2014
12/12/2014
12/12/2014 12/12/2014
12/15/2014 12/16/2014

# 2 Exhibit B − Dupuis Time and Expenses) (Knight, John) (Entered: 12/12/2014)
167 Declaration of James D. Esseks filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Hurtubise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 163 Motion for Attorney Fees, (Attachments: # 1 Exhibit A − Esseks Time Records) (Knight, John) (Entered: 12/12/2014)
168 Declaration of Michael R. Fox filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Hurtubise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 163 Motion for Attorney Fees. (Knight, John) (Entered: 12/12/2014)
169 Declaration of Gretchen E. Helfrich filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Hurtubise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 163 Motion for Attorney Fees, (Attachments: # 1 Exhibit A − Helfrich Time Records) (Knight, John) (Entered: 12/12/2014)
170 Declaration of Marc R. Kadish filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Hurtubise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 163 Motion for Attorney Fees, (Attachments: # 1 Exhibit A − Mayer Brown Hourly Rates, # 2 Exhibit B − Mayer Brown Time and Expense Records) (Knight, John) (Entered: 12/12/2014)
171 Declaration of John A. Knight filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Hurtubise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 163 Motion for Attorney Fees, (Attachments: # 1 Exhibit A − Knight Time Records, # 2 Exhibit B − Excluded Time Records, # 3 Exhibit C − Order Regarding Motion for Award of Fees in Other Case, # 4 Exhibit D − ACLU Expenses) (Knight, John) (Entered: 12/12/2014)
172 Declaration of Jeff Scott Olson filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Hurtubise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 163 Motion for Attorney Fees, (Attachments: # 1 Exhibit A − Olson Curriculum Vitae) (Knight, John) (Entered: 12/12/2014)
173 Bill of Costs by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Hurtubise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young. Motions referred to Magistrate Judge Stephen L. Crocker. Objection to Bill of Costs due 12/22/2014. Brief in Support to Bill of Costs due 1/5/2015. Brief in Reply in Opposition to Bill of Costs due 1/6/2015. (Attachments: # 1 Exhibit − Itemization and Supporting Documentation) (Knight, John) (Entered: 12/12/2014)
Set Deadlines as to 163 Motion for Attorney Fees. Brief in Opposition due 1/5/2015. Brief in Reply due 1/15/2015. (jat) (Entered: 12/15/2014)
174 Unopposed Motion for Extension of Time to Complete Briefing on Fees and Costs Issues by Defendants Oskar Anderson, J.B. Van Hollen, Scott Walker. Motions referred to Magistrate Judge Stephen L. Crocker. (Kawski, Clayton) (Entered: 12/16/2014)

Case: 3:14-cv-64 As of: 11/06/2017 12:14 AM CST 30 of 33

12/16/2014 12/16/2014 12/17/2014
12/19/2014
01/20/2015 01/20/2015
01/26/2015 01/28/2015 02/02/2015 02/02/2015 02/09/2015

175 Declaration of Clayton P. Kawski filed by Defendants Oskar Anderson, J.B. Van Hollen, Scott Walker re: 174 MOTION for Extension of Time. (Kawski, Clayton) (Entered: 12/16/2014)
176 ** TEXT ONLY ORDER ** ORDER granting 174 Motion for Extension of Time. Brief in Opposition due 1/23/2015. Brief in Reply due 2/11/2015. Brief in Support to Bill of Costs due 2/11/2015. Objection to Bill of Costs due 1/23/2015. Brief in Reply in Opposition to Bill of Costs due 2/18/2015. Signed by Magistrate Judge Stephen L. Crocker on 12/16/14. (jat) (Entered: 12/16/2014)
177 Objection to Bill of Costs by Defendant Scott McDonell re: 173 Bill of Costs filed by Keith Borden, Charvonne Kemp, Carol Schumacher, Roy Badger, Katharina Heyning, Kami Young, Karina Willes, Judith Trampf, Pamela Kleiss, Marie Carlson, William Hurtubise, Leslie Palmer, Garth Wangemann, Virginia Wolf, Salud Garcia, Johannes Wallman, Brief in Opposition re: 163 Motion for Attorney Fees, Costs and Expenses filed by Keith Borden, Charvonne Kemp, Carol Schumacher, Roy Badger, Karina Willes, Kami Young, Katharina Heyning, Pamela Kleiss, Judith Trampf, William Hurtubise, Marie Carlson, Leslie Palmer, Garth Wangemann, Virginia Wolf, Salud Garcia, Johannes Wallman. (Gault, David) Modified on 12/18/2014. (lak) (Entered: 12/17/2014)
178 Objection to Bill of Costs by Defendant Wendy Christensen re: 173 Bill of Costs filed by Keith Borden, Charvonne Kemp, Carol Schumacher, Roy Badger, Katharina Heyning, Kami Young, Karina Willes, Judith Trampf, Pamela Kleiss, Marie Carlson, William Hurtubise, Leslie Palmer, Garth Wangemann, Virginia Wolf, Salud Garcia, Johannes Wallman, 163 Motion for Attorney Fees, Costs and Expenses filed by Keith Borden, Charvonne Kemp, Carol Schumacher, Roy Badger, Karina Willes, Kami Young, Katharina Heyning, Pamela Kleiss, Judith Trampf, William Hurtubise, Marie Carlson, Leslie Palmer, Garth Wangemann, Virginia Wolf, Salud Garcia, Johannes Wallman (Serketich, John) Modified on 12/22/2014. (lak) (Entered: 12/19/2014)
179 Emergency Motion to Stay re: 176 Order on Motion for Extension of Time, 163 Motion for Attorney Fees, Costs and Expenses by Defendant Oskar Anderson. Response due 1/27/2015. (Kawski, Clayton) (Entered: 01/20/2015)
180 ** TEXT ONLY ORDER ** In light of defendants' motion to stay a determination on fees and costs, dkt. 179 , briefing on plaintiffs' motion for fees and costs, dkt. 163 , is STAYED pending resolution of defendants' motion. Plaintiffs may have until January 26, 2015, to file a response to the motion to stay; defendants may have until January 28, 2015 to file a reply. Signed by Magistrate Judge Stephen L. Crocker on 1/20/15. (jat) (Entered: 01/20/2015)
181 Brief in Opposition by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Hurtubise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 179 Motion to Stay filed by Oskar. (Knight, John) Modified on 1/27/2015. (lak) (Entered: 01/26/2015)
182 Brief in Reply by Defendants Oskar Anderson, J.B. Van Hollen, Scott Walker in Support of 179 Motion to Stay Briefing and Disposition of Fees and Costs Issues. (Kawski, Clayton) (Entered: 01/28/2015)
183 ORDER denying 179 Motion to Stay. Signed by District Judge Barbara B. Crabb on 2/2/15. (jat) (Entered: 02/02/2015)
Reset Deadlines as to 173 Bill of Costs, 163 Motion for Attorney Fees. Brief in Opposition due 2/9/2015. Brief in Reply due 2/19/2015. (jat) (Entered: 02/02/2015)
184 Brief in Opposition by Defendants Oskar Anderson, J.B. Van Hollen, Scott Walker re: 173 Bill of Costs,, filed by Keith Borden, Charvonne Kemp, Carol Schumacher, Roy Badger, Katharina Heyning, Kami Young, Karina Willes, Judith Trampf, Pamela Kleiss, Marie Carlson, William Hurtubise, Leslie Palmer, Garth Wangemann, Virginia Wolf, Salud Garcia, Johannes Wallman, 163 Motion for Attorney Fees, filed by Keith Borden, Charvonne Kemp, Carol Schumacher, Roy Badger, Karina Willes, Kami Young, Katharina Heyning, Pamela Kleiss, Judith Trampf, William Hurtubise, Marie Carlson, Leslie Palmer, Garth Wangemann, Virginia Wolf, Salud Garcia, Johannes

Case: 3:14-cv-64 As of: 11/06/2017 12:14 AM CST 31 of 33

02/09/2015
02/09/2015 02/19/2015 02/19/2015 02/19/2015 02/19/2015
02/19/2015 02/24/2015

Wallman. (Kawski, Clayton) (Entered: 02/09/2015)
185 Declaration of Clayton P. Kawski filed by Defendants Oskar Anderson, J.B. Van Hollen, Scott Walker re: 163 Motion for Attorney Fees, 173 Bill of Costs, (Attachments: # 1 Exhibit A − Chart Documenting Number of Billable Hours, # 2 Exhibit B − Laffey Matrix − 2014−2015, # 3 Exhibit C − Declaration/Expert Report of Bruce R. Meckler, # 4 Exhibit D − Affidavit of Attorneys' Fees and Costs, # 5 Exhibit E − Declaration of Peter Earle, # 6 Exhibit F − Declaration of Jacqueline Boynton, # 7 Exhibit G − Affidavit of Pamela McGillivray, # 8 Exhibit H − Affidavit of Jeff Scott Olson) (Kawski, Clayton) Modified on 2/10/2015 to add exhibit descriptions. (lak) (Entered: 02/09/2015)
186 Declaration of Richard M. Esenberg filed by Defendants Oskar Anderson, J.B. Van Hollen, Scott Walker re: 173 Bill of Costs, 163 Motion for Attorney Fees. (Kawski, Clayton) Modified on 2/10/2015. (lak) (Entered: 02/09/2015)
187 Brief in Reply by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Hurtubise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young in Support of 163 Motion for Attorney Fees. (Knight, John) (Entered: 02/19/2015)
188 Declaration of Laurence J. Dupuis filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Hurtubise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 163 Motion for Attorney Fees, (Attachments: # 1 Exhibit A − Supplemental time records, # 2 Exhibit B − Affidavit of Dupuis in Christensen v. Sullivan case) (Knight, John) (Entered: 02/19/2015)
189 Declaration of Marc R. Kadish filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Hurtubise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 163 Motion for Attorney Fees, (Attachments: # 1 Exhibit A − Mayer Brown staff titles and experience) (Knight, John) (Entered: 02/19/2015)
190 Declaration of Leslie Cooper filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Hurtubise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 163 Motion for Attorney Fees, (Attachments: # 1 Exhibit 1 − Whitewood v. Wolf settlement agreement, # 2 Exhibit 2 − Whitewood v. Wolf motion and order) (Knight, John) Modified on 2/20/2015 to note there are two paragraphs that are numbered 5. (lak) (Entered: 02/19/2015)
191 Declaration of John A. Knight filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Hurtubise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 163 Motion for Attorney Fees, (Attachments: # 1 Exhibit A − Supplemental time records) (Knight, John) (Entered: 02/19/2015)
192 Notice by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Hurtubise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young. Correction to Reply & Exhibit of Excluded Time, re: 163 Motion for Attorney Fees, (Attachments: # 1 Exhibit − Corrected Exhibit B to Knight Declaration (Excluded Time)) (Dupuis, Laurence) Modified on 2/25/2015. (lak) (Entered: 02/24/2015)

Case: 3:14-cv-64 As of: 11/06/2017 12:14 AM CST 32 of 33

03/13/2015 03/16/2015 03/27/2015 04/03/2015
04/03/2015 04/03/2015 04/20/2015
04/20/2015 04/20/2015
04/20/2015 04/20/2015
04/20/2015

193 Notice by Defendants Oskar Anderson, J.B. Van Hollen, Scott Walker re: 163 Motion for Attorney Fees, Costs and Expenses. (Kawski, Clayton) Modified on 3/16/2015 (jat). Modified on 3/16/2015 (jat). (Entered: 03/13/2015)
Set Telephone Conference: Telephone Status Conference set for 4/8/2015 at 09:00 AM before Judge Barbara B. Crabb regarding motion attorney fees and costs. Counsel for Plaintiff responsible for setting up the call to chambers at (608) 264−5447. (jat) (Entered: 03/16/2015)
194 Stipulation for settlement as to costs and attorneys' fees by Defendants Oskar Anderson, J.B. Van Hollen, Scott Walker. (Kawski, Clayton) (Entered: 03/27/2015)
195 Notice by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Hurtubise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 173 Bill of Costs, 163 Motion for Attorney Fees, Costs and Expenses, and to Remove Status Conference from Calendar. (Dupuis, Laurence) Modified on 4/3/2015. (lak) (Entered: 04/03/2015)
Notice to Counsel: The Telephone Status Conference set for 4/8/15 is canceled. (jls) (Entered: 04/03/2015)
196 ** TEXT ONLY ORDER ** Re: dkt. 195 . Now that the parties have resolved the question of fees and costs, the telephone status conference is no longer necessary and will be canceled. Signed by District Judge Barbara B. Crabb on 4/3/15. (jls) (Entered: 04/03/2015)
197 Motion to Admit Kathleen Marie Przywara Pro Hac Vice. ( Pro Hac Vice fee $ 50 receipt number 0758−1541552.) by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Hurtubise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young. Motions referred to Magistrate Judge Stephen L. Crocker. (Przywara, Kathleen) (Entered: 04/20/2015)
198 Notice of Appearance filed by Kathleen Marie Przywara for Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Hurtubise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young. (Przywara, Kathleen) (Entered: 04/20/2015)
199 Motion to Admit Linda X. Shi Pro Hac Vice. ( Pro Hac Vice fee $ 50 receipt number 0758−1541598.) by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Hurtubise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young. Motions referred to Magistrate Judge Stephen L. Crocker. (Shi, Linda) (Entered: 04/20/2015)
200 Notice of Appearance filed by Linda X. Shi for Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Hurtubise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young. (Shi, Linda) (Entered: 04/20/2015)
201 Motion for Clarification re: 134 Order on Motion to Stay, Order on Motion for Miscellaneous Relief, by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Hurtubise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young. Response due 4/27/2015. (Dupuis, Laurence) Modified on 4/21/2015. (lak) (Entered: 04/20/2015)
202 Brief in Support of 201 Motion for Clarification, by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Hurtubise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young (Attachments: # 1 Exhibit A − Letter from Dupuis to Samuelson, # 2 Exhibit B − Letter from Samuelson to Dupuis, # 3 Exhibit C − Letter from Dupuis to Rowe) (Dupuis, Laurence) Modified on

Case: 3:14-cv-64 As of: 11/06/2017 12:14 AM CST 33 of 33

04/20/2015 04/20/2015 04/21/2015 04/21/2015 04/22/2015 05/11/2015 05/21/2015 06/30/2015
07/07/2015

4/21/2015. (lak) (Entered: 04/20/2015)
203 Declaration of Karina Willes filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Hurtubise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 201 Motion for Clarification. (Dupuis, Laurence) (Entered: 04/20/2015)
204 Declaration of Kami Young filed by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Hurtubise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 201 Motion for Clarification. (Dupuis, Laurence) (Entered: 04/20/2015)
205 ** TEXT ONLY ORDER ** ORDER granting 197 Motion to Admit Kathleen Marie Przywara Pro Hac Vice. Signed by Magistrate Judge Peter A. Oppeneer on 4/21/2015. (lak) (Entered: 04/21/2015)
206 ** TEXT ONLY ORDER ** ORDER granting 199 Motion to Admit Linda X. Shi Pro Hac Vice. Signed by Magistrate Judge Peter A. Oppeneer on 4/21/2015. (lak) (Entered: 04/21/2015)
Set Deadlines as to 201 Motion for Clarification re 134 Order on Motion to Stay, Order on Motion for Miscellaneous Relief. Brief in Opposition due 5/11/2015. Brief in Reply due 5/21/2015. (jls) (Entered: 04/22/2015)
207 Brief in Opposition by Defendants Oskar Anderson, J.B. Van Hollen, Scott Walker re: 201 Motion for Clarification, filed by Keith Borden, Charvonne Kemp, Carol Schumacher, Roy Badger, Katharina Heyning, Kami Young, Karina Willes, Judith Trampf, Pamela Kleiss, Marie Carlson, William Hurtubise, Leslie Palmer, Garth Wangemann, Virginia Wolf, Salud Garcia, Johannes Wallman. (Kawski, Clayton) (Entered: 05/11/2015)
208 Brief in Reply by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Hurtubise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young in Support of 201 Motion for Clarification. (Reply in Support of Plaintiffs' Motion for Clarification of the Injunction Order.) (Dickerson, Frank) Modified on 5/22/2015. (lak) (Entered: 05/21/2015)
209 Notice of Supplemental Authority by Plaintiffs Roy Badger, Keith Borden, Marie Carlson, Salud Garcia, Katharina Heyning, William Hurtubise, Charvonne Kemp, Pamela Kleiss, Leslie Palmer, Carol Schumacher, Judith Trampf, Johannes Wallman, Garth Wangemann, Karina Willes, Virginia Wolf, Kami Young re: 201 Motion for Clarification re: 134 Order on Motion to Stay, (Attachments: # 1 Exhibit − Slip Opinion in Obergefell v. Hodges) (Dupuis, Laurence) Modified on 7/1/2015. (lak) (Entered: 06/30/2015)
210 ORDER that the motion filed by plaintiffs Kami Young and Karina Willes to enforce the June 13, 2014 injunction (which plaintiffs call "motion for clarification of the injunction order"), dkt. # 201 , is denied without prejudice. Signed by District Judge Barbara B. Crabb on 7/6/2015. (voc) (Entered: 07/07/2015)

 
 General Docket Seventh Circuit Court of Appeals

Court of Appeals Docket #: 14-2266 Nature of Suit: 3440 Other Civil Rights Virginia Wolf, et al v. Scott Walker, et al Appeal From: Western District of Wisconsin Fee Status: Paid

Docketed: 06/09/2014

Case Type Information: 1) civil 2) private 3) -

Originating Court Information:

District: 0758-3 : 3:14-cv-00064-bbc

Court Reporter: Lynette Swenson, Court Reporter

Trial Judge: Barbara B. Crabb, District Court Judge

Date Filed: 02/03/2014

Date Order/Judgment:

Date NOA Filed:

06/06/2014

06/09/2014

Prior Cases: None

Current Cases: None

VIRGINIA WOLF Plaintiff - Appellee

Frank Moon Dickerson, III, Attorney Direct: 312-701-8697 [COR LD NTC Retained] MAYER BROWN LLP 71 S. Wacker Drive Chicago, IL 60606
Laurence Jacques Dupuis, Attorney Direct: 414-272-4032 [COR LD NTC Retained] AMERICAN CIVIL LIBERTY UNION OF WISCONSIN Suite 325 207 E. Buffalo Street Milwaukee, WI 53202-3501

CAROL SCHUMACHER Plaintiff - Appellee

James D. Esseks, Attorney Direct: 212-549-2650 [COR LD NTC Retained] AMERICAN CIVIL LIBERTIES UNION 125 Broad Street New York, NY 10004-0000
Hans Joseph Germann, Attorney Direct: 312-701-8792 [COR LD NTC Retained] MAYER BROWN LLP 71 S. Wacker Drive Chicago, IL 60606
Gretchen E. Helfrich, Attorney Direct: 312-701-7387 [COR LD NTC Retained] MAYER BROWN LLP 71 S. Wacker Drive Chicago, IL 60606
John A. Knight, Attorney Direct: 312-201-9740 [COR LD NTC Retained] ROGER BALDWIN FOUNDATION OF ACLU, INC. Suite 2300 180 N. Michigan Avenue Chicago, IL 60601-0000
Frank Moon Dickerson, III, Attorney Direct: 312-701-8697 [COR LD NTC Retained] (see above)
Laurence Jacques Dupuis, Attorney Direct: 414-272-4032 [COR LD NTC Retained] (see above)
James D. Esseks, Attorney Direct: 212-549-2650 [COR LD NTC Retained] (see above)
Hans Joseph Germann, Attorney

ROY BADGER Plaintiff - Appellee
GARTH WANGEMANN Plaintiff - Appellee

Direct: 312-701-8792 [COR LD NTC Retained] (see above)
Gretchen E. Helfrich, Attorney Direct: 312-701-7387 [COR LD NTC Retained] (see above)
John A. Knight, Attorney Direct: 312-201-9740 [COR LD NTC Retained] (see above)
Frank Moon Dickerson, III, Attorney Direct: 312-701-8697 [COR LD NTC Retained] (see above)
Laurence Jacques Dupuis, Attorney Direct: 414-272-4032 [COR LD NTC Retained] (see above)
James D. Esseks, Attorney Direct: 212-549-2650 [COR LD NTC Retained] (see above)
Hans Joseph Germann, Attorney Direct: 312-701-8792 [COR LD NTC Retained] (see above)
Gretchen E. Helfrich, Attorney Direct: 312-701-7387 [COR LD NTC Retained] (see above)
John A. Knight, Attorney Direct: 312-201-9740 [COR LD NTC Retained] (see above)
Frank Moon Dickerson, III, Attorney Direct: 312-701-8697

MARIE CARLSON Plaintiff - Appellee

[COR LD NTC Retained] (see above)
Laurence Jacques Dupuis, Attorney Direct: 414-272-4032 [COR LD NTC Retained] (see above)
James D. Esseks, Attorney Direct: 212-549-2650 [COR LD NTC Retained] (see above)
Hans Joseph Germann, Attorney Direct: 312-701-8792 [COR LD NTC Retained] (see above)
Gretchen E. Helfrich, Attorney Direct: 312-701-7387 [COR LD NTC Retained] (see above)
John A. Knight, Attorney Direct: 312-201-9740 [COR LD NTC Retained] (see above)
Frank Moon Dickerson, III, Attorney Direct: 312-701-8697 [COR LD NTC Retained] (see above)
Laurence Jacques Dupuis, Attorney Direct: 414-272-4032 [COR LD NTC Retained] (see above)
James D. Esseks, Attorney Direct: 212-549-2650 [COR LD NTC Retained] (see above)
Hans Joseph Germann, Attorney Direct: 312-701-8792 [COR LD NTC Retained]

(see above)
Gretchen E. Helfrich, Attorney Direct: 312-701-7387 [COR LD NTC Retained] (see above)
John A. Knight, Attorney Direct: 312-201-9740 [COR LD NTC Retained] (see above)
v.

SCOTT WALKER, in his official capacity as Governor of Wisconsin
Defendant - Appellant

Thomas C. Bellavia, Attorney Direct: 608-266-8690 [COR LD NTC Government State] OFFICE OF THE ATTORNEY GENERAL Wisconsin Department of Justice 17 W. Main Street P.O. Box 7857 Madison, WI 53707-7857

Clayton P. Kawski, Attorney Direct: 608-266-7477 [COR LD NTC Government State] OFFICE OF THE ATTORNEY GENERAL Wisconsin Department of Justice 17 W. Main Street P.O. Box 7857 Madison, WI 53707-7857

Timothy C. Samuelson, Attorney Direct: 608-266-3542 [COR LD NTC Government State] OFFICE OF THE ATTORNEY GENERAL Wisconsin Department of Justice 17 W. Main Street P.O. Box 7857 Madison, WI 53707-7857

J. B. VAN HOLLEN, in his official capacity as Thomas C. Bellavia, Attorney

Attorney General of Wisconsin

Direct: 608-266-8690

Defendant - Appellant

[COR LD NTC Government State]

(see above)

Clayton P. Kawski, Attorney Direct: 608-266-7477 [COR LD NTC Government State] (see above)

Timothy C. Samuelson, Attorney Direct: 608-266-3542 [COR LD NTC Government State] (see above)

OSKAR ANDERSON, in his official capacity as State Registrar of Wisconsin
Defendant - Appellant

Thomas C. Bellavia, Attorney Direct: 608-266-8690 [COR LD NTC Government State] (see above)

Clayton P. Kawski, Attorney Direct: 608-266-7477 [COR LD NTC Retained] (see above)

Timothy C. Samuelson, Attorney Direct: 608-266-3542 [COR LD NTC Government State] (see above)

WENDY CHRISTENSEN, in her official capacity as Racine County Clerk
Defendant - Party-in-Interest

John Paul Serketich, Attorney Direct: 262-636-3758 [COR LD NTC Retained] RACINE COUNTY CORPORATION COUNSEL 730 Wisconsin Avenue Racine, WI 53403-0000

JOSEPH CZARNEZKI, in his official capacity Paul Bargren, Corporation Counsel

as Milwaukee County Clerk

Direct: 414-278-4315

Defendant - Party-in-Interest

[COR LD NTC Retained]

OFFICE OF THE CORPORATION

COUNSEL

Room 303

901 N. Ninth Street

Milwaukee County Courthouse

Milwaukee, WI 53233-0000

SCOTT MCDONELL, in his official capacity David R. Gault, Assistant Corporation Counsel

as Dane County Clerk

Direct: 608-261-9703

Defendant - Party-in-Interest

[COR LD NTC Retained]

OFFICE OF THE CORPORATION COUNSEL 210 Martin Luther King Jr. Boulevard 419 City-County Building Madison, WI 53703
v.

JULAINE K. APPLING Party-in-Interest

Michael D. Dean, Attorney Direct: 262-798-8046 [COR LD NTC Retained] P.O. Box 2545 Brookfield, WI 53008

VIRGINIA WOLF, et al., Plaintiffs - Appellees
v.
SCOTT WALKER, J. B. VAN HOLLEN and OSKAR ANDERSON, Defendants - Appellants

06/09/2014

1

136 pg, 8.96 MB

Private civil case docketed. Fee paid. Docketing statement filed. Transcript information sheet due by 06/23/2014. Appellant's brief due on or before 07/21/2014 for Oskar Anderson, J. B. Van Hollen and Scott Walker. [1] [6581531] [14-2266] (AD)

06/09/2014

THIS CAUSE CONSISTS OF MORE THAN 5 PARTIES FOR EITHER SIDE. The following are those parties to this cause as reflected on the District Court docket, yet are not reflected on the Appellate docket/caption for administrative purposes: APPELLEES: Charvonne Kemp, Judith Trampf, Katharina Keynig, Karina Willes, Johannes Wallman, Salud Garcia, Pamela Kleiss, Kami Young, Keith Borden, Leslie Palmer and William Hurtubise. [6581535-2] [6581535] [14-2266] (AD)

06/09/2014

2

40 pg, 842.8 KB

Emergency motion filed by Appellants Oskar Anderson, J. B. Van Hollen and Scott Walker for stay pending appeal. [2] [6581540] [14-

2266] (AD)

06/09/2014

3

4 pg, 62.51 KB

Filed district court order dated 06/09/2014, denying motion for an emergency stay. Forwarded to MJS. [3] [6581746] [14-2266] (JR)

06/09/2014

4

1 pg, 861.47 KB

ORDER: The parties shall file, by 5 p.m. on Wednesday, June 11, simultaneous memoranda addressing whether this court has

jurisdiction over this appeal. [4] MJS [6581861] [14-2266] (JR)

06/10/2014

5

2 pg, 882.35 KB

ORDER: A preliminary review of the short record indicates that the order appealed from may not be a final appealable judgment within

the meaning of 28 U.S.C. § 1291. Appellants shall file, on or before June 23, 2014, a brief memorandum stating why this appeal should not be dismissed for lack of jurisdiction. A motion for voluntary dismissal pursuant to Fed. R. App. P. 42(b) will satisfy this requirement. Briefing shall be suspended pending further court order. (See order for further details) (VACATED per order of 6/10/14.) [6581884] DW [5] [6581884] [14-2266]--[Edited 06/10/2014 by SM] (SM)

06/10/2014

6

1 pg, 863.64 KB

ORDER: The court, on its own motion, VACATES the June 10, 2014 order as erroneously issued. JR [6] [6581916] [14-2266] (SM)

06/10/2014

7

4 pg, 67.41 KB

Appearance form filed by Attorney Clayton P. Kawski for Appellants Oskar Anderson, J. B. Van Hollen and Scott Walker. [7] [6582113]

(L-No; E-Yes; R-No) [14-2266] (Kawski, Clayton)

06/11/2014

8

3 pg, 546.98 KB

Disclosure Statement filed by Attorney Laurence J. Dupuis for Appellees Roy Badger, Marie Carlson, Carol Schumacher, Garth Wangemann and Virginia Wolf. Additional Parties: Kami Young Karina Willes Charvonne Kemp Judith Trampf Katharina Heyning Salud Garcia Pam Kleiss William Hurtubise Leslie Palmer Johannes Wallmann Keith Borden. [8] [6582290] (L-No; E-Yes; R-No) [142266] (Dupuis, Laurence)

06/11/2014

9

2 pg, 506.25 KB

Disclosure Statement filed by Attorney John A. Knight for Appellees Roy Badger, Marie Carlson, Carol Schumacher, Garth Wangemann and Virginia Wolf. Additional Parties: Kami Young Karina Willes Charvonne Kemp Judith Trampf Katharina Heyning Salud Garcia Pam Kleiss William Hurtubise Leslie Palmer Johannes Wallmann Keith Borden. [9] [6582300] (L-No; E-Yes; R-No) [14-2266] (Knight, John)

06/11/2014

10

10 pg, 76.27 KB

Appearance form filed by Attorney David R. Gault for Party-inInterest Scott McDonell. [10] [6582309] (L-Yes; E-Yes; R-No) [14-

2266] (Gault, David)

06/11/2014

11

7 pg, 44.79 KB

Filed Supplemental Memorandum Response by Party-in-Interest Scott McDonell to court's order dated 6/9/2014. [11][6582310] [142266]--[Edited 06/11/2014 by JAD to reflect appropriate title of document.] (Gault, David)

06/11/2014

12

1 pg, 398.07 KB

Disclosure Statement filed by Attorney Gretchen Helfrich for Appellees Roy Badger, Marie Carlson, Carol Schumacher, Garth Wangemann and Virginia Wolf. for Young, Kami; Willes, Karina; Kemp, Charvonne; Trampf, Judith; Heyning, Katharina; Garcia, Salud; Kleiss, Pam; Hurtubise, William; Palmer, Leslie; Wallmann, Johannes; Borden, Keith. [12] [6582423] (L-Yes; E-Yes; R-No) [142266] (Helfrich, Gretchen)

06/11/2014

13
17 pg, 594.83 KB

Filed Memorandum by Party-in-Interest Joseph Czarnezki to Court Order dated 06/09/2014. [13][6582444] [14-2266] (Bargren, Paul)

06/11/2014

14

53 pg, 5.24 MB

Jurisdictional memorandum filed by Appellants Oskar Anderson, J. B. Van Hollen and Scott Walker. [14] [6582502] [14-2266]

(Samuelson, Timothy)

06/11/2014

15
38 pg, 388.14 KB

Jurisdictional memorandum filed by Appellees Roy Badger, Marie Carlson, Carol Schumacher, Garth Wangemann and Virginia Wolf.

[15] [6582503] [14-2266] (Helfrich, Gretchen)

06/11/2014

16

1 pg, 64.42 KB

Filed Certificate of Service to Jurisdictional Memorandum filed on 06/11/4014 by Appellees Roy Badger, Marie Carlson, Carol Schumacher, Garth Wangemann and Virginia Wolf. [16] [6582505] [14-2266] (Helfrich, Gretchen)

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 Walker v. Wolf, 135 S.Ct. 316 (Mem) (2014)

135 S.Ct. 316 Supreme Court of the United States
Scott WALKER, Governor of Wisconsin, et al., petitioners, v.
Virginia WOLF, et al.
No. 14–278. | Oct. 6, 2014.
	  

Case below, 766 F.3d 648.
Opinion *317 Petition for writs of certiorari to the United States Court of Appeals for the Seventh Circuit denied.
	  
	  

1