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Wednesday, July 2, 2008

“I Do?” Oh No You Don’t

Same-sex marriages performed in California could mean trouble

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Last month, the California Supreme Court struck down Proposition 22, a ballot referendum in which 61% of the state’s residents voted that the word “marriage” should only pertain to a union between a man and a woman. Since then, hundreds of same-sex couples from across the country have flocked to California to say “I do.”

While the California decision is likely to be remembered as a landmark in combating discrimination against lesbian, gay, bisexual and transgender (LGBT) Americans, it may pose problems for same-sex Wisconsin couples who travel to California to wed.

Section 765.04 of the Wisconsin statutes states that if a Wisconsin resident goes to another state to marry because he or she cannot do so under Wisconsin law, the marriage is considered void in Wisconsin. Any person marrying outside the state to “circumvent the laws,” as the statutes put it, may be imprisoned for up to 9 months, fined up to $10,000, or both.

While many states do not recognize same-sex marriages performed in other jurisdictions—due, in part, to amendments to state constitutions and other attempts to define marriage as a contract between a man and a woman—Wisconsin is one of the few to impose such harsh penalties for attempting to get around its marriage laws.

Glenn Carlson, executive director of the LGBT advocacy group Fair Wisconsin, called the penalties “disturbing” and noted that the decision of whether to prosecute a couple for circumventing the state’s marriage laws would “be up to the district attorney of the county where the couple lives.”

Same Country, Different Laws
Although Proposition 22 was found to violate California’s constitution, Dane County Circuit Court Judge Richard Niess ruled last month that Wisconsin’s ban on gay marriage—a 2006 amendment to the state constitution defining marriage as a union between a man and a woman—does not violate Wisconsin’s constitution.

How can this be? Part of the difference stems from California’s larger definition of mar iage, according to Larry Dupuis, legal director of the American Civil Liberties Union of Wisconsin (ACLU). “California has much looser regulations on who can get married there,” he said, noting that the Wisconsin penalties would apply only if a same-sex couple “went there just to get married and then came back to Wisconsin.”

If the couple got married while residing in California, then moved to Wisconsin later, the marriage would not be considered a circumvention of the Wisconsin laws, Dupuis said. While it’s unlikely that many district attorneys would search for same-sex couples who tied the knot in California or elsewhere, there could be a problem if a district attorney was “trying to score some points” with politicians or other community members opposed to same-sex marriage, Dupuis said. This situation is more likely to happen if the couple lives in a very tight-knit community, “where everyone knows everyone else’s business,” he said, or if they are vocal about claiming a certain set of rights they could not claim without formal recognition of the marriage.

Kathleen Hume, a Milwaukee-area attorney specializing in wills and estate planning, says most same-sex couples will not draw attention to themselves in this way because there is not enough legal benefit in doing so. “With things the way they are now in our laws, it does not advance their position any to call attention to the marriage,” she said. Dupuis suggested that any same-sex couple considering getting married in California consult an attorney before doing so, especially if they intend to claim marriage rights in Wisconsin. Organizations such as Center Advocates( www.centeradvocates.org) and Fair Wisconsin (www.fairwisconsin.com) help same-sex couples protect and explore their rights in this area and make referrals to LGBT-friendly attorneys.

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