John M. Becker

Most Wisconsin Counties Now Issuing Marriage Licenses

Filed By John M. Becker | June 10, 2014 9:00 AM | comments

Filed in: Marriage Equality, Politics
Tags: Barbara Crabb, gay marriage, marriage discrimination, marriage equality, same-sex marriage, Wisconsin

Despite the initially conflicting reports that emerged out of yesterday's hearing in Wisconsin's marriage equality case, a majority of the state's 72 counties are either currently issuing marriage licenses to same-sex couples or ready to do so when applicants present themselves.

A Wisconsin State Journal survey of all the county clerks' offices in the state found that as of mid-afternoon yesterday, 46 counties were issuing licenses and 26 were not. Just a few hours earlier, that number was just four (Dane, Kenosha, Milwaukee, and Rock).

Click here for Wisconsin State Journal's map showing the counties that are and aren't issuing licenses.

wisconsin-counties.pngAt least 406 marriage licenses have been issued to same-sex couples in Wisconsin so far. Clerks in many counties -- including the four with the largest number of licenses issued (Milwaukee, Dane, Brown, and Waukesha) -- were also waiving the waiting period, meaning that many of the couples have been able to marry immediately.

In the hours since yesterday's hearing, a clearer account of what transpired has emerged. The Wisconsin State Journal summarizes it thusly:

Interpretations of Crabb's comments Monday differed markedly. Crabb said the "status quo" should continue, but whether that means the state's constitutional amendment banning gay marriage remains in effect, as Attorney General J.B. Van Hollen argues, or whether that means marriages can continue as they have since Friday is a question Crabb did not answer at Monday's hearing.

During the hearing, Crabb said the decision she issued Friday did not contain any injunction because the plaintiffs in the case had not been explicit about what they wanted Crabb to order the state to do or not do.

"There is no relief that's been granted by the court," Crabb said. "That hasn't been decided."...

At Monday's hearing, Crabb reiterated that, while she found Wisconsin's 2006 constitutional amendment banning same-sex marriage a violation of the U.S. Constitution, she had not yet ordered the state to stop enforcing the ban...

Crabb said during the hearing that if the state wants to stop clerks from issuing licenses, it needs to take that matter to state court.

Put another way, Crabb is saying that while Wisconsin's marriage discrimination amendment is unconstitutional, she has not yet entered her final judgment in the ACLU case, so she cannot even consider staying a ruling that does not yet exist. The issuance of marriage licenses to same-sex couples by county clerks is beyond the scope of the case -- again, because she has not yet issued an order either directing them to or forbidding them from doing so -- so the state will have to try its luck in state court if it wants to stop it.

Judge Crabb also slammed the door shut on Attorney J.B. Van Hollen's attempt to go over her head and seek a stay from the U.S. Court of Appeals for the 7th Circuit, saying that the appeals court cannot do so without a final order from the district court.

Most Wisconsin county clerks have interpreted all of this to mean they should begin (or continue) issuing marriage licenses to same-sex couples unless and until a valid court order says otherwise. An opinion issued yesterday afternoon by Phillips Borowski, S.C. -- the law firm representing the Wisconsin Counties Association -- concurs, stating that clerks now have two options in the wake of Crabb's ruling: 1.) issue licenses to same-sex couples without waiving the waiting period, or 2.) issue licenses to same-sex couples and waive the waiting period. The WCA lawyers did not endorse the position of refusing to grant licenses to same-sex couples altogether.

A copy of the full memorandum is after the jump. Many legal observers in Wisconsin predict the number of counties issuing marriage licenses to same-sex couples to rise further as a result of this latest guidance.

So for now at least, same-sex marriages in Wisconsin can continue. How long that will last before the courts step in and press the pause button, no one knows.

Stay tuned -- and marry on, Cheeseheads!

UPDATE, 4:05 P.M. EDT: Wisconsin Public Radio is now reporting that 49 counties are issuing licenses.

Guidance to WI Counties re: Marriage Equality

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