Proponents of same-sex marriage in Wyoming say their movement is on the brink of achieving its goal. This Thursday, the federal District Court in Casper will consider whether 10th Circuit Court of Appeals decisions in favor of marriage equality should apply to Wyoming.
“This is it,” wrote Jeran Artery of Wyoming Equality in a letter to supporters. “As early as the end of (this) week, we will very likely receive a definitive ruling on marriage in Wyoming.”
The hearing in Casper comes in the wake of the Oct. 6 notice from the Supreme Court of the United States that it would not hear appeals of Utah and Oklahoma court decisions that overturned bans on same-sex marriage.
Many proponents of marriage equality interpret that news to mean those rulings apply to all states that fall under the 10th Circuit, which includes Wyoming, Utah, Colorado, Kansas, New Mexico and Oklahoma.
“The state is obligated to comply with the 10th Circuit’s ruling,” said Chris Stoll, senior staff attorney at the National Center for Lesbian Rights, which is providing council for this week’s hearing. “Whether it is a state or federal state court action, the freedom to marry will be coming to the state of Wyoming before too long.”
However, Gov. Matt Mead (R) responded to the Supreme Court order with a statement that he would instruct Wyoming’s Attorney General Peter Michael to uphold the state constitution, which Mead mistakenly said defines marriage as being between a man and a woman.
“Today’s decision by the U.S. Supreme Court has no impact on the case before the Wyoming District Court,” he said, referring to the Courage v. Wyoming case filed by four gay couples seeking the right to marry. “The Attorney General will continue to defend Wyoming’s constitution defining marriage between a man and a woman.”
In fact, Wyoming does not have a Defense of Marriage Amendment in its constitution. The definition of marriage Mead referred to is in Wyoming Statute 20-1-101. An article in the Wyoming Tribune Eagle reported the error on Mead’s part.
“Now that Governor Mead has been made aware that the Wyoming constitution does not define marriage, I hope that he will consider the 10th Circuit Court ruling when deciding whether to waste additional taxpayer resources by keeping the ban on (same-sex) marriage for all Wyoming families in place in the state,” Democratic candidate for governor Pete Gosar said in a statement.
The legacy of Matthew Shepard
Wyoming is a conservative state that some identify with anti-gay violence. That image was reinforced with the 1998 murder of Matthew Shepard, and by the movie Brokeback Mountain. However, some gay-rights advocates say Wyoming’s attitudes toward homosexuality defy such easy categorization.
“I think there were a lot of people back in those days that thought Wyoming was a hateful place to live and not safe for LGBT people, but I have never felt that way about my own safety or heard much about people getting beat up,” said Joe Corrigan, a long-time volunteer for United Gays and Lesbians of Wyoming, the precursor to the Wyoming Equality organization.
“In my own experiences, people treat me with respect, and people have been pretty nice to me in this state,” he said.
More than a decade after Shepard’s murder, debates continue over whether the killing was a “hate crime” motivated by Shepard’s sexuality, or a drug-fueled robbery that turned into a deadly assault.
“I don’t know that any of us will ever truly know what was going on in those boys’ heads when they committed that crime,” Corrigan said, referring to Shepard’s murderers. “But the result of that murder was a hate crime because it sent a shudder through the gay community of Wyoming. Our social activities (for United Gays and Lesbians of Wyoming) following that murder dropped to a third or a half in attendance. The rest wouldn’t come near. They wouldn’t leave their houses at night. They certainly wouldn’t go somewhere where they knew gay people were. That stigma lasted for years following the murder of Matthew Shepard.”
Even so, Corrigan said it is wrong to assume the Matthew Shepard murder was indicative of statewide attitudes towards gays.
“I don’t think the Matthew Shepard murder represents Wyoming,” Corrigan said. “I think it represents two people who went wacko and committed a very ugly crime resulting in the death of a human being, but that doesn’t represent Wyoming. … Most people in Wyoming have a live-and-let-live attitude, and I don’t think they persecute. Most people just mind their own business and go on with life.”
That mind-your-own-business attitude may be one reason that, despite having sodomy laws on the books from 1868-1977, not a single sodomy case has been tried in all of Wyoming history. That makes Wyoming the only state in the nation without sodomy case law.
Some would say that libertarian social values are part of Wyoming’s ethos. That’s true up to a point, but it doesn’t explain the legislature’s consistent efforts to block same-sex marriage and remain aloof from the national trend toward marriage equality. On this issue, there is no clear dominance by either Wyoming’s social conservatives or those who want to “get government out of your life,” contributing to the state’s inaction on gay rights.
As a result, the legislature hasn’t endorsed marriage equality or anti-discrimination based on sexual orientation or gender identity — yet neither has it passed a Defense of Marriage Act amendment, or bills banning recognition of same-sex marriages from other states.
“Wyoming is one of these states that still has a ways to go in terms of protecting gay people from discrimination,” Stoll said. “On the other hand, even though it has a statute that prohibits same sex couples from marrying, it is one of the minority of states that never enacted an amendment to the constitution to prevent same sex couples from marrying. In that sense it is better than many states, historically.”
That has left the state in something of a stalemate over the gay-rights issue. The standstill may be broken this week via the federal court hearing in Casper, even as Gov. Mead continues to support the status quo that federal courts have ruled against. In numerous statements, Mead has said he believes marriage is between a man and a woman, a belief he notes is reflected in Wyoming’s laws.
As Wyoming’s gay-rights proponents move to address the issues brought on by the Oct. 6 order, they are also reflecting back on how far they’ve come in recent years.
The Matthew Shepard Foundation noted that the Oct. 6 decision by the U.S. Supreme Court fell on the anniversary of the 1998 abduction and assault of its namesake.
Though Shepard’s murder happened 16 years ago, Jeran Artery of Wyoming Equality says the legacy of that event is fresh in his mind.
“I think about it constantly,” Artery said. He says has gotten a number of calls from reporters at national publications like the New York Times and the Wall Street Journal who want to know what is going on in Wyoming.
“I think that is all because of Matthew Shepard,” Artery said. “When that happened the nation really became fascinated with what’s going on in Wyoming with this movement.”
History of gay rights in Wyoming
From the territorial era that began in 1868, Wyoming had anti-sodomy laws that were inherited from the Dakota Territory. An 1890 law outlawed fellatio, but reduced the sentence for sodomy from life to five years.
During the McCarthy era of the 1950s, Wyoming followed the national trend of passing a law requiring those convicted of sodomy to undergo psychiatric evaluation. The state also increased the maximum penalty for sodomy from five years to ten years.
In 1977, Wyoming passed a bill defining marriage as between a man and a woman. The same year, Wyoming repealed its anti-sodomy law, and in 1982, the state abandoned common-law language, effectively authorizing all sexual activity between consenting adults.
Joe Corrigan of Cheyenne started working with United Gays and Lesbians of Wyoming in 1989, and began lobbying in the Legislature.
“There were some pretty ugly comments on the floor,” Corrigan said. “I think probably the most blatant comment was, ‘If I had a gay bull, I’d kill it,’ and that was made by some rancher legislator.”
Corrigan believes legislative leaders intentionally sent bills that favored gay rights to committees where they would have no chance of passing.
“Back in the days when I first was testifying at subcommittee hearings, I would be the only one there testifying, and not a single legislator would look me in the eye,” Corrigan said. “They would look at the table. There was zero respect. But I figured they have to listen to me, and you can’t make any progress if you do nothing.”
During the 1999 legislative session in the wake of the Matthew Shepard murder, Wyoming’s Senate voted twice to defeat hate-crimes legislation. A similar House measure died in a 30-30 tie.
Later on legislators sought a bias-crimes bill that would provide harsher sentences for crimes targeting a certain class of citizens. Those efforts didn’t succeed; though in 2009 President Obama signed the federal Matthew Shepard-James Byrd Hate Crimes Prevention Act. The law added sexual orientation and gender identity to the classes of race, color, religion or national origin protected under the Civil Rights Act of 1968.
Wyoming’s delegation of Sen. John Barrasso (R), Sen. Mike Enzi (R), and Rep. Barbara Cubin (R) all voted against the measure, which was attached as an amendment to a bill authorizing defense spending for 2010.
Over the past few legislative sessions, Wyoming has defeated bills banning recognition of out-of-state same-sex marriages three times:
- In the 2007 legislative session, a bill voiding out of state same-sex marriages from recognition in Wyoming failed to pass. Sen. Gerald Geis (R-Worland) and Rep. Owen Petersen (R-Mountain View) sponsored the bill. The measure passed the Senate, but was voted down seven to six in a House committee before it reached the House floor.
- A similar bill banning recognition same-sex marriages passed the House but died in the Senate in March, 2011, with 14 in favor and 16 opposed. Click here to see the bill text.
- In February 2014 the House defeated a bill that would have banned recognition of out of state same-sex marriages, on a vote of 29 in favor 31 opposed.
Since 2009 Wyoming has twice voted against pursuing a constitutional amendment to define marriage as between a man and a woman.
- In 2009, the House defeated a proposal to amend the constitution to define marriage as between a man and a woman. The vote was 35 opposed to 25 in favor. Click here to see a video of the roll call vote.
- Another bill to amend the constitution along the same lines died in 2011 when the House did not consider it after the measure passed the Senate 20 to 10.
June 2011 brought a surprising twist when the state Supreme Court found that same-sex partners have the right to divorce in Wyoming, even though they do not have the right to marry here. In Christiansen v. Christiansen, the Wyoming Supreme Court allowed a same-sex couple married in Canada to divorce in Wyoming. The court’s opinion made clear that the ruling should not be interpreted as applying to the recognition of same sex marriages for reasons other than divorce, saying that question was left for another day.
Movement on marriage equality and anti-discrimination
As national public opinion has moved toward greater support of same-sex marriage, the same trend is evident in Wyoming.
In 2004, 26 percent of respondents in Wyoming favored same-sex marriage. By 2012, polling from the University of California-Los Angeles found that 41 percent of respondents in Wyoming favored marriage for same-sex couples.
The 2012 poll showed Wyoming supported same-sex marriage more than the neighboring states of Idaho, Utah, and Nebraska, but less than Colorado, Montana, and South Dakota.
The 2013 legislative session brought the first two instances in which bills that favored gay rights made it to the floor for debate. Proponents took this as a sign of progress, even though the bills failed.
A domestic partnership bill died in the House 35 opposed, 24 in favor, in January 2013. Wyoming Equality has since backed away from pushing for domestic partnerships. “It’s full marriage equality or nothing,” Artery said.
Another 2013 bill to make discrimination based on sexuality or gender identity illegal failed when 17 out of 30 Senators voted against it.
The 2013 session also marked the first time in the past three general sessions when no bill was sponsored for a Defense of Marriage amendment to the constitution. A bill to legalize same-sex marriages died in the House in February 2014, with 17 in favor and 41 opposed.
A new legal front opens
On March 5, 2014, four couples filed the lawsuit Courage v. Wyoming in state court, seeking the ability to obtain marriage licenses and benefits for same-sex spouses of state employees. Unlike federal court challenges to constitutions in many other states, this case focused on overturning Wyoming’s state statute defining marriage as between a man and a woman. It did so by relying on the equal protection clause of the state constitution.
Wyoming Equality filed the lawsuit with the aid of legal experts from the National Center for Lesbian Rights (NCLR), which is working on numerous marriage equality cases around the country.
The lawsuit followed shortly on Wyoming Equality’s launch of a public relations campaign called Wyoming Unites for Marriage, which was supported by the national organization Freedom to Marry. One of the first efforts of the campaign involved eight Republican legislators who signed onto a letter supporting same-sex marriage. Similar endorsement letters came from lawyers and faith leaders.
In April, former U.S. Sen. Alan Simpson (R) of Cody released a video supporting same-sex marriage in association with Freedom to Marry.
On October 6, the Supreme Court of the United States gave notice it would not consider appeals of the lower 10th Circuit Court decisions in Utah and Oklahoma that ruled against those states’ marriage bans.
Immediately following the Supreme Court decision, same-sex couples in Laramie County and Albany County sought marriage licenses. A rally held Oct. 7 at the Albany County courthouse in Laramie attracted dozens of same-sex marriage proponents. The county clerk’s staff advised those seeking licenses that they would wait for guidance from the county attorney, who subsequently advised the clerk’s office not to issue the licenses. Linda Mahaffey and Teresa Bingham applied for a marriage license and were turned down.
In Cheyenne, Laramie County Clerk Debra Lathrop issued a letter to the couples saying she needed clear direction from the courts on how the recent decisions against same-sex marriage bans in Utah and Oklahoma apply to Wyoming law.
Subsequently, four couples filed a new suit seeking an immediate ruling on the legality of Wyoming’s statute defining marriage as between a man and a woman.
“By not issuing (marriage) licenses now, that means Wyoming is not complying with the law in the 10th Circuit, and that’s why we’ve brought this case is to bring them into compliance,” said Stoll, the attorney with NCLR.
A hearing will be held at 10 a.m. Thursday, Oct. 16, in Casper to decide whether the 10th Circuit decisions striking down marriage bans in Utah and Oklahoma also apply in Wyoming. Federal Judge Scott Skavdahl will preside over the case.
A similar hearing held Friday, October 9 in Alaska brought a ruling on Sunday, October 12 that ended the state’s ban on same-sex marriage. The decision followed similar rulings in the 9th Circuit Court states of Nevada and Idaho.
Some legislators told WyoFile earlier this year that same-sex marriage is an issue that would best be decided by the Legislature or the voters, not the courts.
“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. Gerald Gay (R-Casper) in an April 2014 interview.
“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. Mark Baker (R-Rock Springs) in April.
Baker was one of the most outspoken critics of domestic-partnership bills in the 2013 session. In his arguments on the floor he cited statistics that the life expectancy of gay men is between 39 and 43 years, findings which critics note have been discredited. Rep. Baker did not respond to an interview request or an emailed list of questions for this story.
Artery disagrees with lawmakers who say the state should put same-sex marriage to a vote, letting the people decide.
“It is a bad idea to have a majority voting on the rights of a minority,” Artery said. “I wonder if these same people who are vocal on that, what do they think about Brown v. Board of Education, and Loving v. Virginia? When a minority group has been wronged, they have a right to seek relief through the courts.”
In the run up to the hearing Wyoming Equality is hosting a rally on the morning of Wednesday Oct. 15. in downtown Casper.
“I wonder what Matt (Shepard) would think if he were alive today to see all this progress we’ve made in Wyoming and how hearts and minds have changed,” Artery said. “I would really hope that if I could have a conversation with him that he would say, ‘Job well done. You are changing Wyoming and it makes me proud.’”For more on this issue, read these WyoFile features:
Wyoming same-sex marriage case rests on state constitution, April 8, 2014. Bills aimed at LGBT equality fail, yet proponents see progress, urge civility, January 29, 2013.
Motion in Guzzo v. Mead case to be considered in Casper October 16
State opposition to motion for preliminary injunction