Advocates of same-sex marriage stand in front of the Wyoming Capitol at a rally in support of the Courage v. Wyoming court case. (Wyoming Unites for Marriage — click to enlarge)
Wyoming same-sex marriage case rests on state constitution
By Gregory Nickerson
— April 8, 2014
On February 27th, two same-sex couples walked into the Laramie County courthouse in Cheyenne to apply for a marriage license. The county clerk rejected their applications, citing a Wyoming statute that defines marriage as between a man and a woman. With that denial, the two couples joined a lawsuit that had been in the works for months. The resulting complaint, Courage v. Wyoming, adds Wyoming to the list of states with court cases challenging the constitutionality of bans on same-sex marriage.
The plaintiffs in Courage v. Wyoming are four same-sex couples and Wyoming Equality, a 22-year old organization that advocates for lesbian, gay, bisexual, and transgender issues. Lawyers from Cheyenne, Denver, and the National Center for Lesbian Rights (NCLR) are providing counsel for the case.
“What they are seeking is fair treatment, and the same freedom to marry that other Wyoming residents have,” said David Codell, Constitutional Litigation Director for the NCLR.
The ultimate goals of the complaint are for same-sex marriages from other jurisdictions to be recognized in Wyoming, and for same-sex couples to have the freedom to marry in Wyoming, according to Jeran Artery, director of Wyoming Equality.
“My mantra through this whole thing is it’s time for Wyoming to truly live up to her name as the Equality State,” Artery said. “We have a long tradition of doing the right thing and I have no doubt that we are going to do the right thing in this case as well.”
Wyoming’s nickname as the Equality State also carries special meaning for the legal team working on this case.
“Wyoming’s motto is equal rights,” Codell said. “It’s called the Equality State. It was the first state to give women the right to vote. It is a state with a long tradition of equality, and we are hopeful that the state courts will understand our couples’ cases.”
Cora Courage an Nonie Proffit stand with their children. The couple lives in Evanston. (Wyoming Unites for Equality — click to enlarge)
Two of the same-sex couples listed in the complaint are married in other states or countries, and have state government benefits that don’t extend to their spouse. The married couples include:
Cora Courage and Nonie Proffit of Evanston. Courage is Clinical Director at the State Hospital.
Rob Johnston and Carl Oleson of Casper. Johnston is a former employee of the Wyoming Department of Health who receives a state pension.
The other two couples were denied marriage licenses by the Laramie County Clerk. The unmarried couples included:
Anne Guzzo and Bonnie Robinson of Laramie. Guzzo is a music professor at the University of Wyoming.
Ivan Williams and Chuck Killion of Cheyenne. Both work in the private sector.
Wyoming’s case is interesting because it is challenging a state law in state court, Codell explained. Most other cases in litigation involve Federal Court challenges of Defense of Marriage Amendments in state constitutions.
“[Wyoming] is one of the states that remains where we can ask the state Supreme Court to consider whether its own equal protection and due process clauses require them to recognize that same sex couples have the freedom to marry,” Codell said.
A state court ruling in support of same-sex marriage in Wyoming would be a positive sign that the state could deal with the issue on its own without waiting for a Federal Court to intervene, according to Codell.
Artery said lawyers on his side aim to get the case advanced to the Wyoming Supreme Court. “We think it would be good if there was … a state Supreme Court ruling from a state like Wyoming that’s viewed as a very conservative state,” he said.
Support of same-sex marriage is far from unanimous in Wyoming. Perhaps the most notable among the opposition to the same-sex marriage is Gov. Matt Mead (R). “[As] stated often, my personal belief is marriage is between a man and a woman,” Mead said in a press conference. “The Attorney General will obviously defend Wyoming law as it is, and I’m not going to venture a guess as to what the court will do as my track record of that of recent is not that great.”
The Wyoming legislature has a number of vocal supporters of the traditional definition of marriage, including Rep. Mark Baker (R-Rock Springs). In the 2013 session he made several comments in floor debate that attracted national media attention and anger from the LGBT community.
Rep. Mark Baker (R-Rock Springs)
Baker says his opposition to same-sex marriage is motivated out of a moral belief and a desire to share his Christian perspective, which he says is motivated by love, not by hate or spite. He says he maintains a civil, cordial, and loving relationship with his own half-sister who is in a same-sex marriage.
“I feel for these individuals and I recognize the circumstances they are in, but I think the people of Wyoming want the definition of the state of marriage to be between a man and a woman,” said Rep. Baker. “There are states where people do want [same-sex marriage], but until the atmosphere of the state of Wyoming changes I don’t think it is the right thing to do, regardless of what I think about it in my heart.”
In Baker’s view, part of the pursuit of happiness sometimes involves relocating to places where that happiness can best be found. “If you grow up and you are raised next to the beach, and you want to live next to the mountains, you don’t ask the government to bring the mountains to you. You go and live where the mountains are,” he said. “If they want this so bad they can pursue their happiness in a state that recognizes their marriage.”
For Casper resident Rob Johnston, one of the plaintiffs in the case, moving to a place that accepts same-sex marriage is not an acceptable solution.
“We shouldn’t have to travel to Canada to marry. Wyoming is home, and we love this state — that’s why we’re speaking up,” Johnston wrote in a message from Wyoming Unites for Marriage. “In Wyoming, Carl and I are treated as legal strangers. And until all loving couples in our state can share in the freedom to marry, our family is denied the critical protections and respect we deserve every single day.”
The legal landscape
At present there are roughly 60 same-sex marriage cases filed in courts around the country. The recent surge in litigation follows on last summer’s decision in United States v. Windsor, which struck down Section 3 of the federal Defense of Marriage Act.
In that case, a New York woman named Edith Windsor asked the court for relief from $363,053 in estate taxes owed after the death of her wife Thea Spyer, whom she married in Canada. Recognition of their marriage would have allowed Windsor to receive an estate tax exemption that the IRS normally provides to surviving spouses in heterosexual marriages.
The courts decided in favor of Windsor based on the due process clause and the equal protection clause of the United States Constitution. That put significant energy into new cases seeking recognition of marriage and benefits. Subsequently, cases moved forward in Utah (Kitchen v. Herbert), New Mexico (Griego v. Oliver), Texas (De Leon v. Perry), and Oklahoma (Bishop v. Oklahoma). The Courage v. Wyoming suit focuses on the same constitutional arguments that prevailed in the 5-4 decision in United States v. Windsor.
“It does seem like the dominoes are falling quickly,” said Artery. In the past year, nine federal cases in a row have struck down bans against same sex marriage. “[It’s] fascinating to watch and its a great time to be part of this movement because momentum is clearly on our side.”
As Wyoming’s district court of Laramie County moves to consider Courage v. Wyoming, the United States Tenth Circuit Court of Appeals in Denver is preparing to hear same sex marriage cases from Utah and Oklahoma. The Utah case will be heard April 10, and the Oklahoma case would be heard April 17. The rulings will set the precedent for how Federal Courts in the 10th District, which includes Wyoming, will look at same-sex marriage.
Codell noted that the Oklahoma and Utah cases could also be cited in Wyoming state courts. However, they won’t necessarily affect the outcome of Courage v. Wyoming.
Legislate or litigate?
Since 2011, Wyoming’s legislature has considered a variety of bills for and against same-sex marriage and LGBT rights. Legislative votes on the issue make it clear that the state is on the fence on these issues. Lawmakers are not willing to accept same-sex marriage, but neither are they ready to go the route that many other states have gone of further codifying traditional marriage in a constitutional amendment.
“Nationally, I don’t think people think of the libertarian streak of Wyoming of you stay out of my business and I’ll stay out of yours,” Artery said. “We won’t be the last state to get marriage equality. It’s because of Wyoming’s small government values.”
Artery noted that in 2011 the legislature heard two bills against same-sex marriage, neither of which passed. In the 2013 general session, lawmakers heard three bills in favor of same-sex marriage, civil unions, and LGBT non-discrimination. Though none of the bills passed, Artery still thought it significant that no bills against same-sex marriage were introduced.
In the 2014 session, the impasse on LGBT issues continued. Lawmakers voted not to hear a bill for same-sex marriage. They also set aside a bill sponsored by Rep. Gerald Gay (R-Casper) that would clarify that no same-sex marriages from other jurisdictions would be recognized.
Rep. Gerald Gay (R-Casper)
“[After] the 2013 session when our bills made historic progress but they didn’t pass, we sat down at the table and had really frank discussion,” Artery said. “We said, ‘Do we continue to pursue legislative means, or do we litigate?’ And we consulted with a lot of folks on this, and a lot of national groups, and made the decision to litigate.”
“I’m not saying we couldn’t get there through the legislature,” Artery said. “I think we can, but the question is how fast. The litigation is the fastest way. It appeared to us that that was the obvious choice.”
One of the chief criticisms of same-sex court cases is that they can change law without going through the legislative process. Critics say the strategy relies on “activist courts” with judges who “legislate from the bench” to overrule laws supported by the majority of legislators.
“Wyoming joins almost two dozen other states whose marriage amendments have been challenged in court by gay activists seeking to impose their out-of-state marriages on an unwilling population,” said Focus on the Family judicial analyst Bruce Hausknecht in a press release.
Within Wyoming, several legislators have urged same-sex marriage proponents to seek a vote of approval from the people at large. “I would admonish the promoters of same sex marriage to get a sponsor, make it a [constitutional] amendment and the people of Wyoming will decide if it is something they want,” said Rep. Gay.
That’s not an isolated view.
“If this is the direction that these individuals think the state wants to go, then they need to get it out to the people to vote as a whole instead of passing it in the legislature in a glass box,” said Rep. Baker.
Rep. Dan Zwonitzer (R-Cheyenne) speaks at a Wyoming Unites for Marriage rally. He was among a group of Republican lawmakers who filed an Amicus Brief in a Utah same-sex marriage case to be heard in the 10th Circuity Court of Appeals in Denver. (Wyoming Unites for Marriage — click to enlarge)
However, others see an important role for the courts in same-sex cases. Recently several Wyoming Republicans signed onto an Amicus Brief submitted with the Utah case that will be heard by the 10th Circuit Court in Denver. The brief read in part:
“It is the court’s duty to set aside laws that overstep the limits imposed by the Constitution … to ensure that segments of the population are not deprived of liberties that there is no legitimate basis to deny them.”
Those signing onto the brief included former U.S. Senator Alan Simpson (R), Rep. Dan Zwonitzer (R-Cheyenne), Rep. Ruth Ann Petroff (R-Jackson), and Sen. Michael Von Flatern (R-Gillette). Click here to read the brief.
Codell disagrees that same-sex cases attempt to legislate from the bench.
“The constitution of each state is the highest expression of the will of the people of that state, and when the court enforces the state constitution it is enforcing the will of the people in its highest form,” Codell said.
Looking forward
Despite the recent string of federal court rulings, the outcome and the timeline of Courage v. Wyoming remains uncertain.
“Once it’s in the court you never know what’s going to happen until they have come up with their decision,” said Rep. Gay, who has introduced bills that support the traditional definition of marriage. “You just can’t predict on how the court’s going to pick up on something.”
“It’s anyone’s guess when we expect a ruling,” Artery said. “If they can get it fast-tracked to the Supreme Court we are still looking at a year.”
Gay said it could take even longer.
“I don’t think this case is going to go forward in one year,” Gay said. “It is going to move as fast as a glacier in Wyoming.”
Even with a Supreme Court ruling, the issue of same-sex marriage will persist in Wyoming, perhaps with proponents and opponents alike re-introducing bills in the legislature for further consideration.
“I can guarantee you that either way it goes — in favor of same sex marriage or opposed — there will be a firestorm of opposition to the court’s decision, and there will be more legislation to come out of it. But we are not at the point yet,” Gay said.
Read more about the constitutional arguments in Courage v. Wyoming...
The suit directs its complaint at Wyoming Statute 20-1-101 Marriage a civil contract:
Marriage is a civil contract between a male and a female person to which the consent of the parties capable of contracting is essential.
Specifically, the suit says that statute violates the equal protection clause in Article 1 Section 3 of the Wyoming Constitution. That section states:
Since equality in the enjoyment of natural and civil rights is only made sure through political equality, the laws of this state affecting the political rights and privileges of its citizens shall be without distinction of race, color, sex, or any circumstance or condition whatsoever other than individual incompetency, or unworthiness duly ascertained by a court of competent jurisdiction.
The complaint also points to denial of recognition of same sex marriages performed in other jurisdictions as a violation of W.S. 20-1-111—Foreign Marriages, which reads:
All marriage contracts which are valid by the laws of the country in which contracted are valid in this state.
That clause has been a sticking point for Wyoming in the past. In the Christensen v. Christensen case that made it to the Wyoming Supreme Court, W.S. 20-1-111 was used to allow a same-sex couple to divorce. That left Wyoming’s same-sex couples in the odd position of having recognition of their marriages for divorce proceedings, but not for any other legal purpose.
“We have this clause that is nebulous that is not specific to same sex marriage that recognizes contracts and the court is going to have to rule on that,” said Rep. Gerald Gay (R-Casper). “I can guarantee someone will challenge it and it will get kicked up to the Supreme Court.”
The complaint further says that the denial of recognition of marriages (and the withholding of marriage licenses from same-sex couples) violates the Due Process clause in Article 1, Section 6 of the Wyoming Constitution. That section states:
No person shall be deprived of life, liberty or property without due process of law.
On the other hand, Rep. Gay says the “morality clause” of the Wyoming Constitution prohibits the recognition of same-sex marriage:
Article 7, Section 20. Duty of legislature to protect and promote health and morality of people.
As the health and morality of the people are essential to their well-being, and to the peace and permanence of the state, it shall be the duty of the legislature to protect and promote these vital interests by such measures for the encouragement of temperance and virtue, and such restrictions upon vice and immorality of every sort, as are deemed necessary to the public welfare.
Courage v. Wyoming lists 13 rights in Wyoming Statute that same-sex couples are denied. According to the complaint, some of those rights include:
The right to spousal insurance coverage and benefits.
The right to inherit a share of the estate of a spouse who dies without a will.
The right to file a joint petition for adoption.
The right to worker’s compensation benefits for a spouse who dies on the job.
The right to make medical decisions for an incapacitated spouse.
The right to use a spouse’s address to be eligible for a fishing license.
Rep. Mark Baker (R-Rock Springs) says that many of the rights denied same-sex couples could be achieved through other legal means by consulting with an attorney and filing the proper documents.
“They can own property together and do a lot of things they are trying to do through the legal means of the court system and file whatever paperwork … they can do most of these things they want to do right now,” Baker said.
— Gregory Nickerson is the government and policy reporter for WyoFile. He writes the Capitol Beat blog. Contact him at greg@wyofile.com.
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