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Wisconsin gay couples who marry outside state could face penalty
By STACY FORSTER
sforster@journalsentinel.com
Posted: July 2, 2008
Madison - When
Dick Myers heard that California was going to start issuing marriage
licenses to same-sex couples, he and his partner of nearly 13 years
considered traveling there to get married.
That is until Myers and his partner, Steve Brondino, learned of an
obscure state law that makes it a crime for Wisconsin residents to
enter into marriage in another state if the marriage would be
prohibited here. The law imposes a penalty for those who enter into a
marriage that's prohibited or declared void in Wisconsin of up to
$10,000 and nine months in prison.
"If we would go to California and come back here, what are the
chances we might be prosecuted?" Myers asked. "Neither of us could
afford the legal costs in defending ourselves."
It's a concern for same-sex Wisconsin couples who might be
considering a wedding in California, where the state Supreme Court
recently legalized gay marriage, according to gay rights advocacy group
Fair Wisconsin. However, it's unclear whether those couples would be
prosecuted.
The group sent an e-mail to about 10,000 supporters to see if anyone
was making plans to go to California to get married. It heard back from
two, and followed up to warn them about the law, said Glenn Carlson,
executive director of Fair Wisconsin.
"We're telling people, especially if you live outside of Dane
County, to be careful," Carlson said. After receiving the warning, one
person wrote back that "I'd rather be prosecuted than persecuted."
In 2006, 59% of Wisconsin voters supported a constitutional
amendment that reads: "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."
Julaine Appling, chief executive officer of the Wisconsin Family
Council, said the statutes are clear and the law should be enforced.
"If it were challenged and the courts decided to basically wink at
it, and refused to enforce the law, we have a problem," she said,
adding that the constitutional amendment clarified that no marriage
other than between a man and woman is legal.
Penalty 'very serious'
David Buckel, marriage project
director for Lambda Legal, said other states have similar laws, but
Wisconsin's imposes the stiffest penalties. The national group
advocates for civil rights for gay, lesbian, bisexual and transgendered
people.
Lambda Legal posted on its Web site a list of frequently asked
questions for people who might be weighing a wedding in California or
another country, and included on the list was a reference to the
Wisconsin law.
"We put the information out there because we're deeply worried about
same-sex couples in Wisconsin who may not know about this," Buckel said.
"That's very serious for getting married," he said of the penalty.
Decisions about whether to prosecute are left to district attorneys.
The law is believed to have been enacted to prohibit underage
couples from going across state lines to marry and returning to
Wisconsin to live, Carlson said.
The issue has gained relevance with the California ruling in May,
Carlson said. Massachusetts started recognizing same-sex marriages in
2004 but only for residents, he said.
Senate Republican Leader Scott Fitzgerald (R-Juneau), one of the
authors of the marriage amendment, said he had a hard time seeing how
the law would apply to same-sex couples here, because marriages that
wouldn't be recognized in Wisconsin are strictly ceremonial.
"You're not going to go after some couple because they got married in California," Fitzgerald said.
Rep. Mark Pocan (D-Madison) and his partner went to Canada in late
2006 to get married, but Pocan said he wasn't overly concerned about
the impact of the law.
"It's not technically evading state law because it wasn't allowed
anyway," Pocan said. "It's not something I was too worried about, and
I've got a feeling that Brian Blanchard feels the same way."
Blanchard, the district attorney in Dane County, said that without
evidence of an intent to defraud the government or another person, it
would be difficult to imagine considering such a marriage as criminal
conduct. Also, he called it a "poor use of scarce prosecution
resources."
"It's hard for me to imagine a jury of citizens wanting to convict anyone under this statute," he said.
