Same-sex marriage plea: Just drop it, J.B.

It was entirely predictable that Wisconsin Attorney General J.B. Van Hollen would take steps to prevent gay couples from getting hitched in the aftermath of Federal Judge Barbara Crabb’s ruling to strike down Wisconsin’s ban on gay marriage.

Like Crabb, who was appointed by a Democrat president, Jimmy Carter, Wisconsin’s Republican attorney general affirmed that the current law remains in force. To prevent gay couples from getting hitched — unsuccessfully, as marriage licenses were issued to same-sex couples almost immediately, leading to charges of coordination — Van Hollen filed an emergency request for a stay from Crabb. He might also file a similar motion before the 7th Court of Appeals in Chicago.

Here’s a better idea for Mr. Van Hollen — forget it. Why bother anymore? We all know where this is heading, and trust me, the world will keep on spinning around the sun if gay couples want to share their lives together in the context of marriage. It really will.

In addition to certain realities, the usual arguments do not apply, beginning with charges of judicial activism on the part of Judge Crabb. Not true. She applied a constitutional rationale, the Equal Protection Clause of the Fourteenth Amendment, as the basis for her ruling. The clause guarantees equal protection under the law for every citizen, and there are no exceptions for sexual orientation or anything else.

Marriage just happens to be governed by law, so it should not take a constitutional scholar to see that gay men and women already have the right to marry. There are some folks who don’t believe marriage should be governed by law. Some civil libertarians feel that way. Just about every divorced man with a big monthly alimony payment feels that way, but law governs the institution of marriage. As long as Americans have equal protection under the law, marriage isn’t only between a man and a woman.

There is also a practical business reason to simply accept Judge Crabb’s ruling and move on, rather than appeal it up the legal chain, and it relates to Wisconsin’s workforce needs. For several reasons, some obvious and some not, it’s harder to retain and attract talent in Wisconsin. We’re constantly worried about the so-called brain drain, where we invest tens of thousands of dollars educating each of our children, only to see them search for their first jobs in other states, other tax jurisdictions.



Some return to raise a family here, but others keep Wisconsin in the rearview mirror. That makes our state part of a developmental system for California and Texas and Florida, so the last thing we need is repellent public policy that makes it less likely to attract and hold people with the skills our businesses need.

The gay marriage ban is rarely cited as a reason Wisconsin companies have difficulty in finding workers with the skills they need for open positions they have, but it’s got to be a factor, especially when neighboring states have more accommodating policies.

As the state’s AG and as a Republican, Van Hollen might have no choice but to proceed with a multipronged challenge to Crabb’s ruling. He noted that after a referral from Justice Sonia Sotomayor, the U.S. Supreme Court stayed a lower court’s decision striking down Utah’s ban on same-sex marriage. As a result, Crabb’s ruling will probably be appealed upward, and the entire matter no doubt will wind its way to the nation’s high court. That’s unfortunate because although I realize that a high-court ruling would provide the clarity everyone seeks, it’s time for Wisconsin to get on with the 21st century.

I can hear the howls from conservatives, especially religious conservatives, with whom I share a fondness for free market capitalism, lower tax rates, and pro-growth economic policies. However, I’m not crazy about the GOP’s social dogma, and neither are the majority of younger Republicans because 61% of them happen to support gay marriage — if a recent Pew Research public opinion poll is any barometer.

It’s too bad that constitutional arguments weren’t pre-eminent in 2006, when Wisconsin’s gay marriage amendment was on the ballot and passed overwhelmingly. This is America. People have rights and constitutional protections. For the sake of our state’s economic future, it’s long past time to stop pretending otherwise. As long as we keep pretending, we’re not going to fire on all cylinders.

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