Tuesday, February 4, 2014

New suit in WI takes on "marriage evasion"

Following up on yesterday's post, here's another facepalm.

Many LGBT people travel to states where marriage is legal to tie the knot.  Thanks to the fall of DOMA, marriage now accrues federal rights and benefits.  It's hard to return to a state that doesn't recognize them, but at least they have some protections.

But in Wisconsin, that's illegal. They have a statute  making it a crime for a gay couple to get married somewhere else.  And now, someone is going to litigate.
The litigation seeks not only to overturn the state’s 2006 constitutional amendment barring same-sex marriage, but also to enjoin state official from enforcing a “marriage evasion law” prohibiting couples — gay and straight — from going elsewhere to marry if the marriage would be prohibited in the state. 
The penalties of violating the marriage evasion law in Wisconsin, which is the only state to have such a statute, include up to $10,000 in fines and nine months in prison. 
The marriage evasion law is particularly problematic for same-sex couples in Wisconsin because the Obama administration in most cases has elected to recognize same-sex marriages even if the state doesn’t recognize them — provided these couples are able to marry in a jurisdiction that allows it. 
John Knight, a staff attorney with the American Civil Liberties Union’s LGBT project, called the marriage evasion law a “Catch-22″ for same-sex couples living in Wisconsin who want to marry. 
“Wisconsin is unique in that sense, and so we think that argument particularly exemplifies the harm or the animus toward same-sex couples in some parts of the country,” Knight said.
How can that be considered anything other than rawest animus?


PseudoPiskie said...

Fear knows no bounds? I'm convinced the hatred is based in fear of what is unknown but possibly applicable. And knowing the animus that awaits any LGBT person.

James Pratt said...

What the article doesn't mention is the history of the marriage evasion law. Is it something that was enacted at the same time as the ban on same-sex marriage? If so, it's clearly unconstitutional, the way current cases are going. But if it's a holdover from the 19th century (for cases like my great-great-grandfather, who eloped with his first cousin from Maine to New Hampshire), it would pass constitutional muster (but become moot when the courts strike down the marriage ban).

IT said...

Hi James, the marriage evasion law dates to 1915. One question is whether it has ever been applied....

James Pratt said...

that's a good question.

Having read the complaint, it reads more like a news article than a legal pleading. Not a bad thing. The technical legal arguments have all been made elsewhere and are carrying the day, and we just need to keep arguing and winning victories in the court of public opinion to make sure the Supremes don't get cold feet.

I doubt the evasion law has ever been applied, at least in the last 50 years. I hope that bringing it up in this case doesn't give the usual suspects cause to say the ACLU is overreaching by focusing on a law that has never been enforced. On the other hand, those same people were quick to urge Massachusetts to deny marriage licenses under a state law that forbade issuing licenses to out-of-state residents, if the marriage would be illegal in their home state, so I can see them urging prosecutions in states with evasion laws, as they become increasingly desperate.