There is a minor contretemps over a Wisconsin law that prohibits people who live in and intend to continue to live in Wisconsin and who are, for some reason legally unable to marry, from going to another state and marrying. The law says that the out of state marriage is void in Wisconsin and actually imposes criminal penalties on the parties.
Although the article reporting the issue calls the law obscure, I am not sure that it is. I have known about it for a long time and, in fact, recall telling someone that she could not avoid Wisconsin's four month waiting period for remarriage after divorce by getting married in another state.
Would the law apply to same sex couples who travel to California to get married? Would such people be prosecuted? Tom Foley accuses Julaine Appling of wanting to send "gay people" to prison because she is quoted as saying that the law should be enforced. While enforcement of the penalty provisions would not be tantamount to throwing "gay people" in prison, it's unclear to me whether she is merely saying that the law should be enforced to declare such out of state weddings void or whether she is really advocating criminal penalties against those who engage in such ceremonies. In any event,
The latter position seems to be clearly correct. You can't go to California, marry a person of the same sex and have that marriage recognized here. Even if sec. 765.01(4) didn't exist, the constitutional amendment declaring the invalidity of same sex marriages would compel that result. And that may be the key to understanding while there will should be no prosecutions. (Apart from the fact, that it would be politically tone deaf.)
Representatives Fitzgerald and Pocan, speaking from opposite sides of the same sex marriage debate, say that there can be no prosecution because same sex marriages are void anyway. I think that, as a practical matter, they are right. They may also be right conceptually although not for reasons that Rep. Pocan would find edifying.
First, the practical. Assume that John and Mary go out of state to get married the day after Mary's divorce and return to Wisconsin claiming to be married. If their act is treated as criminal, it seems to be because they have tried to sneak around the law. Because detection of an invalid marriage between a man and a woman is difficult (one reason, I suspect, that the law is seldom enforced), those who get caught face criminal penalties in order to deter others,
If John and Michael go to California to get married they are not, as a practical matter, going to be able to claim to be married here. It is obvious that they are not and cannot be. If they simply make the symbolic claim that they regard themselves as "married," the law is not violated. It doesn't forbid people from thinking they are married, it just says that those relationships won't be recognized legally.
If they claim legal status for that marriage, I suppose you can argue that say that the statute literally applies. But there is an ontological problem. John and Mary have tried to enter into a relationship that would be a marriage (because between a man and woman) if regulation concerning marriage did not prohibit it. John and Michael are trying to enter into a relationship which cannot ever be marriage - at least in Wisconsin - because it is not between a man and woman. It is not prohibited by a regulation of marriage. It is not within the category of relationships that could be marriage. They are not excluded by an exception. They are not within the definition.
Some folks would argue that this distinction is meaningless because marriage is only what the law says it is and we can't really distinguish between marriage as a thing in itself and the rules regulating it. For reasons that are way beyond the scope of this post, I think that's wrong. But whether for conceptual, practical or political reasons, I don't expect to see John and Michael prosecuted.