Despite new IRS rules, WI gay couples who file joint state taxes could face jail time

Mon. September 9, 2013 8:48 AM by Wisconsin Gazette

Madison, WI - 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 WiG 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.

WiG 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, 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.

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