John M. Becker

UPDATED: WI Marriage Judge Stays Ruling; Weddings Stop

Filed By John M. Becker | June 13, 2014 6:26 PM | comments

Filed in: Marriage Equality, Politics
Tags: Barbara Crabb, gay marriage, J.B. Van Hollen, marriage discrimination, marriage equality, same-sex marriage, stay, Wisconsin

One week after her historic ruling striking down Wisconsin's marriage discrimination amendment as unconstitutional, U.S. District Court Judge Barbara Crabb has entered her final order in the case. It contains a permanent injunction barring enforcement of the amendment and ordering county clerks to issue marriage licenses to same-sex couples.

However, Judge Crabb also stayed her ruling, halting further same-sex weddings from taking place while the state appeals to the 7th District Court of Appeals in Chicago.

This is a developing story. Check back for updates.

UPDATE: Judge Crabb's ruling does not address the legality of the hundreds of same-sex marriages performed across Wisconsin over the past week. That's a matter of state law and determining whether county clerks had sufficient legal authority to issue the licenses that they can be considered valid.

But there appears to be a very good chance that the marriages will be upheld. Clerks in many counties across Wisconsin did not initially seem to want to issue marriage licenses to same-sex couples. They reversed course only after their lawyers came to the conclusion that they needed to do so under Judge Crabb's declaration that the state's marriage discrimination amendment was unconstitutional. Furthermore, as Dane County Clerk Scott McDonnell pointed out earlier today, it's unlikely that Wisconsin same-sex couples who married during the window will have their marriages nullified because it's never happened in any other state in the post-Windsor era:

"If you look to what's happened in other states, no one has invalidated a marriage that's occurred in these windows. So, you know, I think it would be nice if it were uniform, if we could all know exactly what was going on, but I think there will be some protection and I think these couples will be legally married now and in the future."

UPDATE, FROM THE ORDER: Judge Crabb indicated that she had decidedly mixed feelings about issuing the stay, but that she ultimately had to follow the precedent set by the U.S. Supreme Court, which stayed a federal district judge's pro-equality ruling in Utah's freedom-to-marry case, Kitchen v. Herbert:

"Generally, the answer to that question [whether an injunction should be stayed] is determined by weighing four factors: (1) whether the defendant has made a strong showing that it is likely to succeed on appeal; (2) whether the defendant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in theproceeding; and (4) where the public interest lies...

"If I were considering these factors as a matter of a first impression, I would be inclinedto agree with plaintiffs that defendants have not shown that they are entitled to a stay. However, I cannot ignore the Supreme Court's order in Herbert v. Kitchen, in which the Court stayed a district court's order enjoining state officials in Utah from enforcing its ban on same-sex marriage. It is impossible to know the Court's reasoning for issuing the stay because the Court did not accompany the order with an opinion, but, since Herbert, every statewide order enjoining the enforcement of a ban on same-sex marriage has been stayed, either by the district court or the court of appeals, at least when the state requested a stay. In following Herbert, other courts have stated that, despite the lack of any reasoning in Herbert, they did not see any grounds for distinguishing the Supreme Court's order...

"After seeing the expressions of joy on the faces of so many newly wedded couples featured in media reports, I find it difficult to impose a stay on the event that is responsible for eliciting that emotion, even if the stay is only temporary. Same-sex couples have waited many years to receive equal treatment under the law, so it is understandable that they do not want to wait any longer. However, a federal district court is required to follow the guidance provided by the Supreme Court. Because I see no way to distinguish this case from Herbert, I conclude that I must stay any injunctive relief pending appeal."

A copy of Judge Crabb's order is after the jump, via Equality Case Files.

3:14-cv-00064 #134 by Equality Case Files

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