John W. Eyster: Step-by-Step to “Equal Protection of the Law” for same-sex marriage
For persons who know U.S. history, there is no surprise as WE THE PEOPLE continue to realize the FULL RANGE of “EQUAL PROTECTION OF THE LAW” step-by-step. Review the steps as that range has expanded since the 14th Amendment was ratified on July 9, 1868. History records the opposition of former Confederate states to the 14th Amendment and their very slow ratification votes after the amendment had become part of our US Constitution. Several states first rejected the 14th Amendment and then ratified it later. Congress pressured former Confederate states to ratify by requiring ratification for the state to gain representation in Congress.
The 14th Amendment has had very significant impact on our government as the Supreme Court has applied its provisions to various cases since it has several KEY clauses as identified by the Supreme Court:
1 –Citizenship Clause
2 – Due Process Clause
3 – Incorporation of the Bill of Rights Clause
4 – Equal Protection Clause
I suggest you read the Wikipedia article, "Fourteenth Amendment to the United States Constitution" and the links in that article to each of the clauses to gain more information.
The focus is on the “EQUAL PROTECTION CLAUSE” as there is the continuing issue of whether it embraces same-sex marriage. I am among those who are convinced that it does. What do YOU think?
We KNOW that WISCONSIN is now among the states wrestling with this legal issue since Friday, June 6 when Judge Barbara Crabb declared the Wisconsin Constitutional Ban on same-sex marriage to be UNConstitutional under the US Constitution’s “EQUAL PROTECTION CLAUSE.”
And then, 1-week later, Friday, June 13, Judge Crabb clarified her ruling after hearings which clarified what those contending the case wanted. Her decision had 2-parts:
1 – Permanent injunction preventing the Wisconsin State Government from enforcing the same-sex marriage ban.
2 – Stay on her orders on same-sex marriage to be stayed pending appeal by the State of Wisconsin through the Attorney General.
OUTCOME of Judge Crabb’s final order: Win for each party to the case. If you want to read the report of the case published the day after the order was handed down by the Wisconsin State Journal by Ed Treleven with support by Matthew DeFour, you will gain details, “Judge bars enforcement of same-sex marriage ban but halts marriages while state appeals.”
The article reflects Judge Crabb’s wrestling with the issue of whether to stay her orders; she did stop same-sex marriages in Wisconsin. I do NOT think the stay was necessary. I think it was a nod to Wisconsin Attorney General Van Hollen.
At the same time, I am aware that Judge Crabb also put the stay in place KNOWING that there was precedent with Appeals Courts or the Supreme Court staying such decisions by Federal Judges in other states. The Supreme Court did issue a stay on January 6, 2014 at the request of Utah’s Attorney General while the 10thCircuit Court of Appeals (Denver, CO) considers the case. Wisconsin’s Attorney General was appealing Judge Crabb’s ruling so one would expect that the Supreme Court, if necessary, would stay the ruling pending review by the 7th Circuit Court of Appeals (Chicago, IL).
If you want to read a very complete review of the dynamics of the process in Wisconsin, I recommend the feature article published on June 13 by the Christian Science Monitor by Warren Richey’s article, “Same-sex marriage: After 550 Wisconsin couples wed, US judge stays her ruling.”
NOW WISCONSIN stands with the numerous other states in which FEDERAL DISTRICT JUDGES have ruled one or another form of ban on same-sex marriage UNConstitutional. The Supreme Court will have a full range of cases from which to select the case(es) which it will hear during its 2014-15 terms which starts on the First Monday of October (October 6). NOTE: The US Supreme Court does NOT have to take ANY case dealing with same-sex marriage unless the justices choose to do so. IF four of the nine justices vote to take a case for review, then it will be scheduled during the term. While the court does hand down decisions during the term, it is highly likely that a same-sex marriage case would be considered so very significant that it would be held to hand down at the end of the term in June 2015. Time will tell.
One of the most disruptive realities of the gap between Judge Crabb’s ruling striking down the Wisconsin Constitutional Ban on same-sex marriages and her follow-up with specifics a week later is the fact that there are more than 550 same-sex couples who were LEGALLY MARRIED during those days.
While Judge Crabb did instruct Wisconsin government as to how it will have to implement the lifting of the ban on same-sex marriages if and when her stay is lifted, she did NOT immediately remedy the situation for legally married same-sex couples in Wisconsin. They are in limbo under Wisconsin law for the time being. This led members of our Wisconsin congressional delegation to ask Attorney General Eric Holder to grant the same federal recognition as other Wisconsin couples currently married have. They cited the fact that the Obama administration did extend that recognition to same-sex couples in both Utah and Michigan after federal judges struck down the states bans and the courts stayed the orders. I too hope that the Obama administration will follow-up to grant federal recognition to the over 550 same-sex couples married in Wisconsin between Judge Crabb’s orders of Friday, June 6 and Friday, June 13. This would be reasonable and appropriate. What do YOU think?
I have been interested to watch the confrontations between Governor Scott Walker and Gubernatorial Candidate Mary Burke about same-sex marriage. Having taught “US Government & Politics” at the high school and college level for years, I do NOT agree with Governor Walker that Burke needs to take “Government 101.” She is NOT asserting any direct role for a governor in the process of an amendment to our WI State Constitution. She is, however, ASTUTELY asserted that WE THE PEOPLE of WISCONSIN want to KNOW where candidates to be WISCONSIN STATE GOVERNOR stand on this very significant public policy issue. Both BURKE and WALKER know that it is the US Supreme Court which will hand down THE decision which will clarify US LAW about same-sex marriage. What WALKER is trying to avoid is clarifying his own stance as a candidate to be re-elected Wisconsin State Governor on same-sex marriage. I KNOW I want to KNOW clearly what Walker’s stance is NOW. I know what his stance was in 2009 when the amendment was passed in a referendum in Wisconsin. I also know that WE THE PEOPLE of WI, like WE THE PEOPLE of the US, have made a dramatic change in our stance on same-sex marriage. I KNOW that now a majority of voters in Wisconsin SUPPORT same-sex marriage. I believe the amendment would be repealed in a referendum today.
I do want to KNOW the CURRENT STANCE of Scott Walker, candidate for Wisconsin State Governor, on same-sex marriage. I KNOW that the GOVERNOR we elected in November 2014 will take office in January 2015 and will be KEY in the implementation of the US Supreme Court’s decision in WISCONSIN. I know that I want a GOVERNOR who will conscientiously implement the FULL RANGE of “EQUAL PROTECTION OF THE LAW,” including same-sex marriage, as the US Supreme Court orders when it hands down a decision. I definitely WANT TO KNOW the stance of each candidate for Wisconsin Governor on same-sex marriage. Sorry, Scott, YOU are a candidate for Governor and MUST respond to WE THE PEOPLE of WI. I realize you may want to avoid this issue since you have major political ambitions, but, for now, YOU must answer to WE THE PEOPLE of WI. What do YOU expect from our gubernatorial candidates?
John W. Eyster lives in the Edgerton area. He is an adjunct professor of political science at UW-Whitewater and an advocate for Project Citizen, a model curriculum for democracy/civics education in Wisconsin high schools. John is a community blogger and is not a part of The Gazette staff. His opinion is not necessarily that of the The Gazette staff or management.