Wisconsin gay couples who marry outside state could face penalty

By Stacy Forester, JS Online Journal

Madison, WI - When Dick Myers heard that California was going to start issuing marriage licenses to same-sex couples, he and his partner of nearly 13 years considered traveling there to get married.

That is until Myers and his partner, Steve Brondino, learned of an obscure state law that makes it a crime for Wisconsin residents to enter into marriage in another state if the marriage would be prohibited here. The law imposes a penalty for those who enter into a marriage that's prohibited or declared void in Wisconsin of up to $10,000 and nine months in prison.

"If we would go to California and come back here, what are the chances we might be prosecuted?" Myers asked. "Neither of us could afford the legal costs in defending ourselves."

It's a concern for same-sex Wisconsin couples who might be considering a wedding in California, where the state Supreme Court recently legalized gay marriage, according to gay rights advocacy group Fair Wisconsin. However, it's unclear whether those couples would be prosecuted.

The group sent an e-mail to about 10,000 supporters to see if anyone was making plans to go to California to get married. It heard back from two, and followed up to warn them about the law, said Glenn Carlson, executive director of Fair Wisconsin.

"We're telling people, especially if you live outside of Dane County, to be careful," Carlson said. After receiving the warning, one person wrote back that "I'd rather be prosecuted than persecuted."

In 2006, 59% of Wisconsin voters supported a constitutional amendment that reads: "Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state."

Julaine Appling, chief executive officer of the Wisconsin Family Council, said the statutes are clear and the law should be enforced.

"If it were challenged and the courts decided to basically wink at it, and refused to enforce the law, we have a problem," she said, adding that the constitutional amendment clarified that no marriage other than between a man and woman is legal.

Penalty 'very serious'

David Buckel, marriage project director for Lambda Legal, said other states have similar laws, but Wisconsin's imposes the stiffest penalties. The national group advocates for civil rights for gay, lesbian, bisexual and transgendered people.

Lambda Legal posted on its Web site a list of frequently asked questions for people who might be weighing a wedding in California or another country, and included on the list was a reference to the Wisconsin law.

"We put the information out there because we're deeply worried about same-sex couples in Wisconsin who may not know about this," Buckel said.

"That's very serious for getting married," he said of the penalty.

Decisions about whether to prosecute are left to district attorneys.

The law is believed to have been enacted to prohibit underage couples from going across state lines to marry and returning to Wisconsin to live, Carlson said.

The issue has gained relevance with the California ruling in May, Carlson said. Massachusetts started recognizing same-sex marriages in 2004 but only for residents, he said.

Senate Republican Leader Scott Fitzgerald (R-Juneau), one of the authors of the marriage amendment, said he had a hard time seeing how the law would apply to same-sex couples here, because marriages that wouldn't be recognized in Wisconsin are strictly ceremonial.

"You're not going to go after some couple because they got married in California," Fitzgerald said.

Rep. Mark Pocan (D-Madison) and his partner went to Canada in late 2006 to get married, but Pocan said he wasn't overly concerned about the impact of the law.

"It's not technically evading state law because it wasn't allowed anyway," Pocan said. "It's not something I was too worried about, and I've got a feeling that Brian Blanchard feels the same way."

Blanchard, the district attorney in Dane County, said that without evidence of an intent to defraud the government or another person, it would be difficult to imagine considering such a marriage as criminal conduct. Also, he called it a "poor use of scarce prosecution resources."

"It's hard for me to imagine a jury of citizens wanting to convict anyone under this statute," he said.