John M. Becker

Conflicting Reports Emerge From WI Marriage Hearing

Filed By John M. Becker | June 09, 2014 4:00 PM | comments

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

bigstock-Portrait-of-confused-young-wom-21873596.jpgGot whiplash yet?

Earlier this afternoon, U.S. Judge Barbara Crabb declined to issue an emergency stay of her Friday ruling that Wisconsin's marriage discrimination amendment is unconstitutional. This led to multiple reports that marriages could and would continue, at least for now, in the counties currently granting licenses to same-sex couples.

However, the Wisconsin State Journal put out a strikingly different report with the headline, "Judge declines to stay marriage ban ruling, but says she didn't authorize weddings."

From the article:

Judge Barbara Crabb on Monday declined the state's request for a stay of her ruling tossing out Wisconsin's constitutional ban on same-sex marriage pending an appeal. But in her first public remarks since her Friday ruling, Crabb said she did not explicitly tell county clerks to issue marriage licenses to same-sex couples.

Crabb said her ruling was a declaratory judgment, not an injunction. That means that she found the amendment unconstitutional but has not immediately barred its enforcement. Instead, she has ordered opponents of the ban to prepare briefs on how an injunction should be framed.

She said the marriages conducted in Dane and Milwaukee counties over the weekend, and in other counties Monday, should not be going forward.

"I never said anything" about whether county clerks should go forward with granting marriage licenses to same-sex couples, Crabb said. "That hasn't been decided."

More confusion, after the jump.

The Journal Sentinel gives a slightly more detailed account of what happened:

A federal judge [in Madison] declined to press pause Monday on gay marriages in Wisconsin, leaving it for now to county officials, a federal appeals court and, possibly, state courts to decide whether same-sex unions continue around the state.

Three days after her historic ruling striking down the state's same-sex marriage ban, U.S. District Judge Barbara Crabb indicated Monday afternoon that in the coming days either she or a federal court is likely to grant a stay of her Friday ruling, which would block county officials around the state from issuing marriage licenses to gay and lesbian couples while her decision from Friday is appealed.

But Crabb said she was leaving the "status quo" in place for now because she wanted to hear more from the two sides in the case on the implications of a stay before deciding on it. She set her next hearing for June 19.

"I will consider a stay as to what's in the (final order,) but I'm not going to act today," Crabb said at the hastily called hearing.

Crabb's comments effectively mean that for now the state will remain divided into counties such as Dane, Milwaukee and Waukesha, where clerks are issuing same-sex marriage licenses, and counties such as Ozaukee, Washington and Racine, where they are not.

When asked by state attorneys Monday about that inconsistency among counties, Crabb said that was an issue for state courts to decide if needed, not her. She said that, though she had struck down the marriage ban, she had given no orders on it so far to state and local officials in Wisconsin, so she had nothing to halt.

"They did not act because I told them they could," Crabb said of county officials. "That hasn't been decided."

This is massively confusing, of course. Many of the counties currently issuing marriage licenses to same-sex couples are doing so on the advice of their lawyers, who presumably concluded that that was the course of action required by Crabb's ruling. If the WSJ's quote is accurate and Crabb never intended marriages to start immediately in the first place, some clerks may decide to reverse course and hold off on issuing any further marriage licenses to same-sex couples for now.

The office of Attorney General Van Hollen has just issued a statement saying that the marriage discrimination amendment remains in effect:

In my opinion -- a very humble one, as I am not a lawyer -- this confusion makes it even more likely that the 7th Circuit will step in, issue a stay on Judge Crabb's ruling, and halt further same-sex marriages in Wisconsin until the issue is worked out in the courts. (In another wrinkle, as mentioned above, if Crabb in fact did not intend for same-sex marriages to start at all, the state of Wisconsin could ask a state court to issue an order to county clerks halting the issuance of any further marriage licenses to LGBT couples.)

So if you're a same-sex couple in Wisconsin that's ready to get married and you live in a county where the clerk is issuing licenses, I'd strongly suggest that you assemble the requisite documents and fees and get down to the clerk's office right now -- particularly if your county clerk is waiving the waiting period -- and marry as soon as possible, before anything else changes.

As per usual, stay tuned for further developments on this story.

UPDATE: Openly gay and happily married U.S. Representative Mark Pocan (D-WI) slammed Van Hollen for fighting marriage equality in Wisconsin. His office sent out this statement, via press release:

"For the first time, LGBT couples received the legal recognition and benefits of marriage from our state. The rights of all LGBT individuals across Wisconsin were upheld by a federal court on Friday and yet today Attorney General Van Hollen is asking a federal appeals court to stop county clerks from issuing marriage licenses. The Attorney General's decision to appeal the ruling that struck down Wisconsin's ban on same-sex marriage is a regressive and blatantly political attempt to revive a hateful and discriminatory law which violates the ideals of liberty and equality in our Constitution. Society has changed, barriers to equality continue to be broken down; it's too bad our Attorney General is still living in a more hateful day."

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