Under an arcane and seldom enforced “marriage evasion” law, Wisconsin same-sex couples who tie the knot in a marriage-equality state, such as neighboring Iowa or Minnesota, could face nine months in jail and a $10,000 fine when they return home as newlyweds.
Statute 765.30(1)(a) of the Wisconsin code provides the penalty to “any person residing and intending to continue to reside in this state who goes outside the state and there contracts a marriage prohibited or declared void under the laws of this state.”
The law, which is similar to evasion laws in other states, was enacted in 1915 to prevent Wisconsinites from going to other states and entering into marriages prohibited here, such as marriages involving cousins or people under the state’s legal age of consent.
The most recent prosecution of the law that Wisconsin Gazette was able to find was a 2001 case involving a man who left the state to get married 30 days after his divorce became final. Wisconsin law requires divorced people to wait six months before entering into another marriage.
Wisconsin Gazette was unable to find evidence that the law has ever been used to prosecute a same-sex Wisconsin couple, despite the fact that many have married outside the state, including U.S. Rep. Mark Pocan and his husband Phil Frank.
But in the wake of the Supreme Court decision revoking Section 3 of the Defense of Marriage Act, which withheld federal recognition for same-sex marriages, the White House is on an expedited course to extend as many federal marriage benefits as possible to lesbian and gay couples who are eligible.
The rapidly changing federal policies on same-sex marriage have made evasion laws like the one in Wisconsin potential legal quagmires.
ACLU of Wisconsin executive director Chris Ahmuty said it’s not difficult to imagine a rogue district attorney apprehending a same-sex couple married out of state in order to make a statement or score political points, just as renegade county clerks in New Mexico and Pennsylvania are handing out marriage licenses to test the law in those states.
In a July 9, 2008, interview that aired on CNN.com, Julaine Appling, CEO of Wisconsin Family Council, advocated for the prosecution of same-sex couples under the marriage evasion law.
“You purposely left the state or another state and you get married and you know it’s not going to be legal where you reside and you have every intention of returning. That’s defrauding the government,” Appling said in the interview.
Appling, a never-married woman who has lived for decades with another never-married woman in a home they own jointly in Watertown, continues to work fiercely against equality.
She’s currently behind a lawsuit to overturn the state’s domestic partner registry law, which offers some key rights to same-sex couples in Wisconsin, such as inheritance and hospital visitation.
At the time Appling advocated for the prosecution of same-sex couples who marry out of state, labor and employment law attorney Tamara Beth Packard told the Wisconsin Law Journal that while prosecution under the law seemed unlikely, it also seemed possible.
“I don’t think we should underestimate the level of animosity that some people have toward gay and lesbian couples who try and receive some legal recognition of their relationship,” she said then.
Since then, the issue of same-sex marriage has become far more prominent, with a dwindling number of opponents more entrenched than ever.
The ACLU’s Ahmuty said that in order to be in violation of the law, a married same-sex couple would have to attempt to exercise a legal right in Wisconsin that’s reserved only for married couples, such as file a joint state tax return or treat property as if it was community property.
Ahmuty said couples would be foolhardy to test the state’s marriage evasion law. “The penalties are so strict,” he warned. “People who go ahead and do this are putting themselves at a considerable risk.”
But at the same time, Ahmuty is actively encouraging same-sex couples registered with Wisconsin’s domestic partner registry to apply for Social Security benefits as a couple. That, he explained, is because the registry allows partners to inherit property without a will, which is the legal standard used by the Social Security Administration in approving claims for couples.
Single people are entitled to Social Security benefits based solely on their own earnings, but married couples have more generous options. Not only can they inherit their spouse’s benefits, but if one spouse earned lower wages than the other, or did not earn enough Social Security credits to be insured for retirement benefits, he or she may be eligible to receive the benefits of a spouse.
To demonstrate just how complicated the legal situation is, Ahmuty said Wisconsin couples should apply for Social Security benefits under the state’s partner registry law and not on the basis of an out-of-state marriage, which would be an active violation of the state’s marriage evasion law.
This use of the registry is unproven, however, and the registry faces a lawsuit seeking to overturn it for allegedly violating a voter-backed constitutional amendment banning any legal arrangement between same-sex partners that is “substantially similar” to heterosexual marriage. The Wisconsin Supreme Court, whose justices are primarily conservative Republicans, will determine the case.
The recent announcement that the federal government will allow same-sex couples married in any equality state, regardless of where they reside, to file joint federal tax returns poses yet another conundrum under Wisconsin’s marriage evasion law.
Ahmuty said that same-sex couples who want to take advantage of this benefit must be careful to file separate state tax returns as single individuals, even if they file joint federal returns.
Filing joint state tax returns as a married couple would not only be rejected by the Wisconsin Department of Revenue but could trigger prosecution under the marriage evasion law, Ahmuty warned.
Fair Wisconsin is “trying to make sure people understand what is coming out as it unfolds,” said Fair Wisconsin president and CEO Katie Belanger. “Given our state ban on marriage equality and marriage evasion statutes, the IRS’ decision to allow same-sex couples who are legally married in another jurisdiction to file joint taxes puts Wisconsin in a difficult position. We would strongly encourage the Wisconsin Department of Revenue to generate clear guidelines for married same-sex couples in Wisconsin well before the tax filing season begins.”
Belanger urged same-sex couples to seek professional advice from their lawyers and accountants.
She noted that in addition to presenting a hardship for same-sex couples, the patchwork of often-contradictory laws governing marriage in different states presents a nightmare for businesses with multi-state operations. They must apply a confusing variety of withholding laws and personnel policies to gay and lesbian employees in different states. This scenario presents yet another drag on the state’s economy, which currently ranks 38th in the nation in terms of job creation.
Ahmuty said the confusion will eventually be resolved by a boatload of legal cases wending their way through the judicial system and the eventual overturning of DOMA’s Section 2, which declares that states and territories of the United States have the right to deny recognition of same-sex marriages that originated in other states or territories.
The June 26 Supreme Court decision did not address Section 2, but Ahmuty and others believe it’s only a matter of time.
“Section 2 is going to get overturned someday and there’s a lot happening in the pipeline, so people just need to be patient,” he advised.
Editor’s note: Wisconsin Attorney General J.B. Van Hollen and his office did not return calls seeking clarification of the state’s position on same-sex Wisconsin couples married out of state. Van Hollen opposes marriage equality and, along with Gov. Scott Walker, refused to defend the state’s domestic partner registry law from a suit brought by the anti-gay group Wisconsin Family Action.