Terrance Heath

Locked Up For Loving

Filed By Terrance Heath | July 13, 2008 4:30 PM | comments

Filed in: Living, Marriage Equality, Politics
Tags: Mildred Loving, same-sex marriage, Wisconsin

Well, that didn't take long. Just this week I asked:

I'm just wondering if it's too far-fetched to suggest that we're probably not too far from the day when someone -- a gay couple who gets married, or the person who officiates -- does get arrested and locked up. What happens then?

I guess I have my answer.

Every summer, Bob Klebba and David Waugh take a family beach vacation to San Diego. Besides fun and sun, this year's trip will have a little something extra: a wedding.

The two Madison men will be getting married at a San Diego courthouse in August. In May, the California Supreme Court ruled that barring same-sex couples from marriage is unconstitutional. Since June 17, same-sex couples have been getting married throughout California. Non-residents are allowed to marry there, too.

"What we might be looking for is outside recognition of our relationship -- recognition from society," Klebba said. "This is a way to ask for that recognition. Happily, California is willing to give us that."

Wisconsin, however, is not. Not only will Klebba's and Waugh's marriage not be recognized here, they could be taking a legal risk by entering into it. Wisconsin is a state that imposes criminal penalties on residents if they enter a marriage outside the state that would be prohibited in the state. The law was created to prohibit underage couples from crossing state lines to marry, but it could be interpreted to apply to same-sex marriages, according to Glenn Carlson of Fair Wisconsin, an advocacy group for gays and lesbians. In Wisconsin, the penalty is a fine of up to $10,000, nine months in prison, or both.

"It would be interesting to be prosecuted," Klebba said. "It would really bring up a reaction in the public sentiment."

So, let me get this straight. (Pun intended.) We may still be a country that locks people up for marrying each other?

It's a good thing Mildred Loving didn't have to see this.

Loving was born Mildred Delores Jeter, of African and Rappahannock Native American descent, and married a white man named Richard Loving in June 1958. The Lovings traveled to the District of Columbia to be married, but on their return to their home in Central Point, Virginia, they were charged with "cohabiting as man and wife, against the peace and dignity of the Commonwealth" according to Virginia's anti-miscegenation law.

The Lovings pled guilty and were forced to leave Virginia to avoid going to jail, having been ordered not to return together for 25 years. A few years later, frustrated by their inability to travel together to visit their families in Virginia, Mildred Loving wrote to Attorney General Robert F. Kennedy, who referred the case to the American Civil Liberties Union. The legal challenge, Loving v. Virginia, was heard by the United States Supreme Court, which ruled on June 12, 1967, that any ban on interracial marriage was unconstitutional.

June 12 has become known as Loving Day in the United States, a day of celebration of mixed-race marriages.

We know what she would have to say about it, though.

My generation was bitterly divided over something that should have been so clear and right. The majority believed that what the judge said, that it was God's plan to keep people apart, and that government should discriminate against people in love. But I have lived long enough now to see big changes. The older generation's fears and prejudices have given way, and today's young people realize that if someone loves someone they have a right to marry.

Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don't think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the "wrong kind of person" for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people's religious beliefs over others. Especially if it denies people's civil rights.

I am still not a political person, but I am proud that Richard's and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That's what Loving, and loving, are all about.

It would be interesting, indeed, if Wisconsin imprisoned same-sex couples for marrying out of state.

My guess is that Wisconsin will probably look the other way, because Wisconsin -- and probably even people who oppose same-sex marriage -- would like to avoid the media spectacle of same-sex couples being handcuffed and taken off to jail, or even having to go to the courthouse and pay a fine. Because even people who aren't comfortable with the idea of same-sex marriage are even more uncomfortable with the idea of locking people up for marrying each other.

Nevermind the media spectacle of marriage as civil disobedience. Picture multiple couples going to California, getting married, and returning to Wisconsin to present themselves as married. Picture multiple same-sex couples being jailed for those actions. Picture multiple same-sex couples being jailed for refusing to pay even the most minimal fines for their illegal marriages. My guess is that's an image that neither Wisconsin or the opponents of marriage equality would rather not be associated with.

Of course, as long as the law is on the books, same-sex couples are vulnerable even if the state doesn't enforce it. All it takes, after all is someone -- anyone, really -- who just wants to make life difficult for a same-sex couple to press the issue, and cause them to be arrested or hauled into court even if charges are dropped or dismissed.

Cross-posted from The Republic of T.

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Brynn Craffey Brynn Craffey | July 13, 2008 4:52 PM

A friend of mine who's a lawyer told me that in 1970's California, straight married people who engaged in oral sex were still occasionally serving sentences in San Quentin.

If the law is on the books, expect it to eventually be applied.

The legal term escapes me, but it is well-settled in the common law that when law enforcement seeks to renew enforcement of long-ignored laws, they must give notice first.

If I were a conservative minded DA, the last thing I would do would be to challenge a law on the books that has an excellent chance of being struck down. You just might start some legal precedent that will pave the way for same sex marriage.

It hasn't been mentioned that these laws were originally enacted to prevent border jumping elopements of those under the legal age of marriage (or in some cases, to prevent state consanguinity statutes). Most states have them, except in the South.

And before someone rips into me for insulting Southerners, look it up.

I don't think they have much to worry about there in WI, but they should still reconsider that law! Kids who cross state lines to get married shouldn't be locked up!

In all honesty, I hope some Wisconsin couple has the chutzpah to get married in California, come back to Wisconsin and walk into a police station to turn themselves in. Put the cops in the position of having to follow the law, thereby putting the right wingers who would like to use this law against LGBT couples on the spot; force them to either admit its a bad law, or support it and make very public asses of themselves. Nothing would get it across to people how unfair the law is like seeing a couple like Del and Phyllis hauled off in handcuffs for getting married.

Robert Ganshorn Robert Ganshorn | July 14, 2008 1:59 AM

I think that they don't have a lot to be concerned about in Dane county Wisconsin as that is probably the Gayest per capital county in the state with the University of Wisconsin, Madison as it's anchor.

In the boonies of Wisconsin there would a a fundamentalist dependent prosecutor who would try them. The punishment of being sued is the cost of defending yourself, unless you are bailed out by the ACLU, and the stress and nutjobs you are forced to encounter. It is in places like these where good people die.

Susan, you read my mind.

I'd love to see 20-30 same sex couples take off for the big C-A and get married. When they return (and I'd do this singly to capture the news cycle for the maximum duration) they'd walk straight to the nearest police station and turn themselves in. If you could get multiple couples at multiple stations, that'd work too.

By showing that these laws still exist, we can move the cause forward dramatically.

I live in Wisconsin - same-sex couples have been heading to Canada for years to get married, knowing that it wouldn't be recognized once they returned home. The news about this outdated statute didn't come out until after CA started offering marriage equality. I haven't heard anything in local media about law enforcement agencies looking to start enforcing the law now, but as Robert mentioned, there are still enough neo-con fundies in our rural areas that it could happen.

My hope is that the state legislature will wake up and rescind the law with little fanfare, much as MA is preparing to do with their statute that disallows marriage for non-residents. Hopefully this could serve as a stepping stone to repeal our state constitution's marriage amendment, now in its second inglorious year.