Same-sex marriage: What is constitutional?


OSHKOSH – Same-sex marriages are being performed across Wisconsin.

“They have an opportunity so they’re not going to wait even though there’s a risk,” said Rev. Roger Bertschausen, a Unitarian Universalist minister who performed several ceremonies.

Some have asked FOX 11 on our Facebook page how Judge Barbara Crabb’s action to overturn the 2006 state constitutional amendment is legal. They wondered why their votes may not count.

FOX 11 dug into the issue. Here are the facts.

Wisconsin ratified its marriage amendment in 2006 as marriage between one man, one woman. It passed with 59% of the vote.

But, the U.S. Constitution can override state constitutions as invalid.

That’s what Judge Barbara Crabb cited in her decision Friday.

“Under the United States constitutional analysis shows it’s unconstitutional. And that is the job of the federal courts,” said former Wisconsin State Supreme Court Justice Janine Geske.

FOX 11 spoke with Geske on the phone. She said Crabb could issue a stay, halting same-sex marriage licenses. Or, the 7th Circuit Court of Appeals, located in Chicago, could decide to issue a stay.

“But if they did not, the attorney general has one more option and he can go to the United States Supreme Court and ask for a stay from the United States Supreme Court,” said Geske. “So, I suspect by the end of the month there is probably going to be a stay by one of these three courts.”

Despite the possibility of the ruling being overturned, same-sex couples getting married in Winnebago County Wednesday it’s still worth it.

“With the tide of it going through every state right now and the amount of states where it is firmly in place I believe it will be seen as unconstitutional,” said David Bluma of the Town of Neenah. Bluma married his partner of 33 years, Brad Morrison, on Wednesday.

However, even if the marriages are put on hold in this state, couples could still receive federal benefits. The U.S. Supreme Court struck down portions of the Defense of marriage Act last year. It defined marriage as being between a man and a woman, which denied federal benefits to legally married same sex couples.

Crabb scheduled a hearing for Friday. It’s unclear if the federal appeals court will step in before that hearing.

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