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BENCH BLOG: Breaking down Crabb’s gay marriage opinion

Jean DiMotto is a retired Milwaukee County Circuit Court judge. She served for 16 years, and was on the criminal bench for 12 of those years.

Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also serves of counsel with Nistler & Condon SC.

Everyone appreciates a well-written decision, so there is general agreement that federal District Judge Barbara Crabb wrote a bravura opinion in declaring Wisconsin’s constitutional amendment banning same-sex marriages unconstitutional.

Crabb observed that the marriage amendment is unusual because it is the “rare, if not unprecedented” act of using a state constitution to restrict, not expand, constitutional rights and to require discrimination against a class of individuals.

According to her opinion for Wolf v. Walker, “Particularly because Wisconsin statutory law already limited marriage to opposite-sex couples … enshrining the ban in the state constitution seems to suggest that the amendment had a moral rather than practical purpose.”

Early on, Crabb signaled her reliance on six U.S. Supreme Court cases, a number of which held that marriage is a fundamental right protected by the U.S. Constitution:

  • United States v. Windsor, a 2013 decision invalidating the Defense of Marriage Act
  • Lawrence v. Texas, a 2003 decision overturning statute criminalizing homosexual sodomy
  • Romer v. Evans, a 1996 decision banning discrimination based on sexual orientation
  • Turner v. Safely, a 1987 decision overturning a ban on prisoners getting married
  • Zablocki v. Redhail, a 1976 decision allowing marriage of parents who fail to pay child support
  • Loving v. Virginia, a 1967 decision overturning a ban on interracial marriage

She also summarized her equal protection argument. “[P]erhaps more than any other endeavor, we view marriage as essential to the pursuit of happiness, one of the inalienable rights in our Declaration of Independence.”

Thus, “‘marriage is not merely an accumulation of benefits. It is a fundamental mark of citizenship.’” By banning marriage of same-sex couples, Wisconsin’s marriage amendment denies them equal citizenship.

The lawsuit

The plaintiffs in Wolf v. Walker are eight Wisconsin same-sex couples, three of whom lawfully married in other jurisdictions and want their marriages legally recognized in Wisconsin. The remaining five couples meet the criteria for getting married in Wisconsin except for being same-sex couples.

The defendants include Gov. Scott Walker, Attorney General J.B. Van Hollen, and Registrar Oskar Anderson. Three county clerks for the counties in which the plaintiffs reside and from whom they would obtain marriage licenses also were named as defendants but did not advance any arguments.

Plaintiffs filed a motion for summary judgment. Defendants filed a motion to dismiss. An amicus curiae brief was submitted by five directors and officers of Wisconsin Family Action on behalf of the three primary defendants.

Preliminary issue

As a threshold matter, the defendants argued that Wisconsin’s marriage ban is immune from constitutional review. Crabb responded that the very purpose of the 14th Amendment is to prevent states’ overreaching.

According to the opinion, “Although Wisconsin’s same-sex marriage ban was approved by a majority of voters, is part of the state constitution and deals with a matter that is a traditional concern of the states, none of these factors can immunize a law from scrutiny under the United States Constitution.”

Standard of review

Nearly half of the 88-page decision is devoted to an analysis of the appropriate standard of review for the plaintiffs’ due process and equal rights claims. Within these pages, Crabb included some of the most poignant and lyrical quotations from Supreme Court opinions and legal commentators.

For example, the court described marriage as “a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. … [I]t is an association for as noble a purpose as any involved in our prior decisions.”

Crabb noted that the defense wrongly framed the issue as whether there is a right to same-sex marriage. The due process issue actually is whether the fundamental right to marry is one from which same-sex couples may be excluded. In other words, is the scope of that right restricted depending on who is exercising it? Crabb answers “no.”

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Turning to the standard of review for both the due process and equal protection questions, Crabb observed that neither the Supreme Court nor the 7th Circuit Court of Appeals has definitively decided whether sexual orientation discrimination requires heightened scrutiny, so she embarked on an analysis of this question.

Among the four relevant factors, none of the parties disagreed about two of them: gay people have a history of being discriminated against and their orientation does not prevent them from contributing to society.

On the factor of whether sexual orientation is immutable, Crabb agreed with those courts recognizing that sexual orientation is fundamental to a person’s identity. It is therefore not a characteristic that one should be required to change.

Crabb found the fourth factor, whether the class is politically powerless, to be the least weighted of the four. She reasoned that since the gay people constitute only a small percentage of the population and one experiencing a history of discrimination, this factor is met.

Accordingly, she concluded that the marriage amendment is subject to heightened scrutiny. She therefore examined the state’s interests to determine if they were sufficiently important and narrowly tailored to effectuate only those interests.

Asserted state’s interests

Some of the most interesting comments in the opinion came in response to the defendants’ six asserted interests.

For example, in response to the interest of preserving the allegedly millennia-old tradition of one man one-woman marriage, Crabb noted that historians have identified polygamy in more places and at more times than any other marriage form. She then quoted from the Lawrence case, “‘[P]reserving the traditional institution of marriage’ is just a kinder way of describing the State’s moral disapproval of same-sex couples.”

As to the interest of encouraging procreation, Crabb wrote that the defendants failed to show how denying marriage to same-sex couples encourages opposite-sex couples to have children. She noted the fact that little or no stigma attaches to childless couples.

As well, “the lack of any attempts by the state to dissuade infertile persons from marriage is proof that marriage is about many things, including love, companionship, sexual intimacy, commitment, responsibility, stability and procreation …”

On the interest of providing an environment for optimal child rearing, Crabb stated: “Marriage applicants in Wisconsin do not have to make any showing that they will make good parents or that they have the financial means to raise a child. A felon, an alcoholic or even a person with a history of child abuse may obtain a marriage license. Again, the state’s singular focus on banning same-sex marriage as a method of promoting good parenting calls into question the sincerity of this asserted interest.”

Crabb questioned whether the Supreme Court would regard as legitimate the asserted interest of protecting the institution of marriage. The Windsor court used strong language denouncing this same basis for DOMA.

She rejected as illegitimate the interest of Wisconsin waiting to see how same-sex marriages played out in other states. And she redirected the slippery slope argument (how can polygamy and incest be prohibited once same-sex marriages are allowed) to the important point that plaintiffs’ claims here are like those in the Windsor, Turner, Zablocki and Loving cases.

“[G]ay persons simply are asking for the right to marry someone,” Crabb wrote. “With the obvious exception of minors, no other class is being denied this right.”


This is a well-crafted, lucid, erudite decision replete with references to and quotations from precedent and commentators.

Crabb’s analysis is at once thoughtful and common sensical. The opinion is neither snide nor accusatory. For these reasons it is a welcome addition to federal jurisprudence in Wisconsin.

This decision will nonetheless be viewed politically because the political process was used to enact the marriage amendment. It is interesting to note that the tide of Wisconsin residents’ opinion about same-sex marriage has moved from majority against in 2006 when the amendment was enacted to majority supporting in 2014.

The opinion is certain to be appealed. Meanwhile it has not been stayed and courts may be confronted with the question of whether the same-sex marriages that have occurred in more than 40 Wisconsin counties will remain valid through the remainder of the appellate process.

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