Sunday, July 06, 2008

Honeymoon in Waupun?

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.


Anonymous said...

And yet... the law actually does provide for criminal penalties, and there are people who have said that the law should be enforced. You can dilly dally all you want about how easy or hard it would be, that doesn't make it go away.

As a matter of law, I also believe that there jurisdictional and constitutional issues that surround this law, that could potentially make it void.

Rick Esenberg said...

I neither dilly nor dally. I am trying to explain why, from a number of perspectives, I don't think anyone is going to jail. There could be full and faith credit issues here, but nor around same sex marriages. There is nothing to be gained by same sex couples going to California to be "married" other than whatever intrinsic value it has to them. But that value may also be obtainable by having an extra-legal ceremony here. And there would, of course, be no question of that being illegal. It just would have no legal effect.

Anonymous said...
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Anonymous said...

I love it ... even if she was, and even if she was a lesbian (which you obviously try to imply without saying), what exactly would that have to do with the State of Wisconsin legally enforcing or not legally inforcing penalties against the invalidity of out of state marriages?

The only way she would be a hypocrite is if she had some kind of legally binding marriage from another state which has no effect and is against the law here in Wisconsin.

Anonymous said...

I agree that it would have no legal effect... so why would someone pass a law which could potentially put someone in jail at the whim of a prosecutor for something they did to make themselves feel better to no harm to anyone else? And don't forget that the whims of prosecutors who are running for re-election often can be devastating.

Nothing says "family values and law and order" like throwing a bunch of gays in jail for getting married.

And is it really that horrible that a same sex couple would want to go through some sort of ceremony in order to mark that their relationship has gotten to a certain point? Is it so surprising that they'd want to? You seem to mock their desire to... when its the exact same desire that many heterosexual couples have.

illusory tenant said...

Why would someone pass a law which could potentially put someone in jail at the whim of a prosecutor for something they did to make themselves feel better to no harm to anyone else?

That's exactly one of the several legal questions raised here, as the statutes under consideration were enacted long before the marriage amendment was ratified.

It's clear the legislature intended to discourage bigamy and to prevent first cousins from reproducing but not so clear whether it even contemplated sending a gay couple to jail for nine months.

Dad29 said...

John and Michael are trying to enter into a relationship which cannot ever be marriage - at least in Wisconsin

You could drop "at least in Wisconsin" and be accurate, Rick. It is ontology, not legal positivism, which counts.

Rick Esenberg said...

I deleted the post at 7:40 pm because I cannot permit anonymous unsourced and, under the circumstances, arguably defamatory content about individuals.

Anonymous said...

Rick I really begin to think you have a problem with gay people......this post talks in a lot of circles at the center I think is a deep-seated homophobia on your part. I notice you like to touch on gay related issues periodically.....why dont you come out to SF spend some time in the gay community get to know us....FYI ssm is no longer a news item in California

Anonymous said...

from this site

I don't get the obsession with homosexuals, which seems to be a feature of both fundamentalist style Christianity and political conservatism. Personally I don't think about gay people too often. Christian conservatives will often tell you they aren't so much concerned with gay people per se, but rather their focus is on "homosexual acts."

Maybe that's why I'm not a conservative Christian because, trust me, homosexual acts are about the last things I care to focus on.* It makes little sense to me why self-proclaimed anti-homosexuals would want to focus on homosexual acts because the only people who should be focusing on homosexual acts are, well, homosexuals.

I don't recall having any opinion about homosexuals at all, aside from the usual high school tittering, until I read the late Graham Chapman's mostly hilarious autobiography many, many years ago.

I say mostly hilarious because it does contain at least one serious moment,** where Chapman discusses his own homosexuality. Why are two men in love the objects of so much opprobrium, Chapman wondered, when what's needed in the world is more love, not less. It made sense then, and it still makes sense now.

Wasn't the main Biblical character that Christians claim to follow all about the love, also? There's more than a little hypocrisy at work within these condemnations of homosexuality. And that hypocrisy just might be a manifestation of some deep closeting.

* The male configurations, at least