John M. Becker

Stay Likely Today in Wisconsin Marriage Equality Case

Filed By John M. Becker | June 13, 2014 3:00 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

scales_justice.jpgBreaking news: U.S. District Judge Barbara Crabb, who last week struck down Wisconsin's marriage discrimination amendment, heard arguments from plaintiffs and the state last hour about how officials should be ordered to proceed.

Republican Attorney General J.B. Van Hollen wants Judge Crabb to stay her decision and halt further same-sex marriages in Wisconsin while the state appeals; equality advocates want the weddings to continue.

This afternoon's hearing adjourned without a ruling, but according to WISC-TV, Judge Crabb said she will likely issue one by the end of the day today.

As of today, despite threats and intimidation from Attorney General Van Hollen, 63 of Wisconsin's 72 counties are issuing marriage licenses to same-sex couples. At least 555 licenses have been issued across the state.

Dane County Clerk Scott McDonnell told WISC-TV that no matter what happens today, he's confident that the marriage licenses issued in Wisconsin over the past week are and will remain legal and valid:

"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: Attorney Emily Dudak Taylor of the Law Center for Children & Families, who was present at the hearing, says on Facebook that based on what she heard in court, she thinks Judge Crabb is likely to issue a stay.

So if you're a Wisconsin same-sex couple who has decided to marry and are not constrained by a waiting period -- either because your clerk is waiving them or because the requisite number of days have elapsed -- get married now. Quickly. A stay of Judge Crabb's ruling could come at any minute.

UPDATE, 3:35 p.m. EDT: The Milwaukee Journal Sentinel is also reporting that a stay is likely:

A federal judge said Friday that she would likely issue a final decision this afternoon in Wisconsin's gay marriage lawsuit, and signaled she would immediately put that order on hold while the historic case winds through months of appeals or more.

The immediate upshot: the same-sex weddings taking place in most counties in Wisconsin may be halted within a few hours. In the hearing Friday, U.S. District Judge Barbara Crabb in Madison gave no indication whether those same-sex marriages already performed will hold up...

At a hearing Friday afternoon, Crabb did not move immediately to enjoin state officials from enforcing the ban or say for certain whether she would block any such order from taking effect right away while the case is on appeal. But she said she would likely issue a written ruling soon.

"I'll try to make whatever I decide plain, clear, understandable," she said.

Crabb indicated she would likely order the county clerks in Dane, Milwaukee and Racine counties who were sued in the case to issue marriage licenses to same-sex couples. But she said she was less certain whether she would issue specific orders to Gov. Scott Walker and Wisconsin Attorney General J.B. Van Hollen, who are defendants in the case.

Crabb indicated she believed she was obligated to stay any injunction she issues, which would halt same-sex marriages until higher courts rule on the issue. She noted stays have been issued in all other same-sex marriage cases around the country.

"As you know, the system, federal system, is one in which district courts must follow the rulings of the (U.S.) Supreme Court, and so far what the Supreme Court has done is indicate it will enter stays if the district court doesn't," she said. "I'm just at the bottom level of the system."

UPDATE, 4:05 p.m. EDT: Emily Dudak Taylor just posted an in-depth summary of what transpired at this afternoon's hearing. I'll add it after the jump.

If you need a refresher, a copy of Judge Crabb's historic ruling from last Friday striking down Wisconsin's marriage discrimination amendment is after the jump, via Equality Case Files.

3:14-cv-00064 #118 by Equality Case Files


Here's a summary of what transpired at today's hearing from Attorney Emily Dudak Taylor of the Law Center for Children & Families:

Judge Crabb did not issue a ruling in today's hearing, about the content of the injunction or the stay. However, she did say she would most likely rule today on both issues.

Regarding the injunction, the parties went back and forth about the content. The Walker administration says the ACLU's proposed injunction is too broad when it states, essentially, that Walker, Van Hollen, Vital Records Office, and county clerks must treat same-sex couples the same as opposite-sex couples. This type of injunction language has been used around the country. The Judge seemed to agree with the Walker administration that the injunction needs to be more specific, i.e., not "treat them the same for purposes of all Wisconsin Statutes," but rather "issue marriage licenses" or "record the marriages in vital records and issue a marriage certificate."

The ACLU made an excellent argument that in Windsor, the plaintiff was not made to spell out every federal benefit, program, and official touched by the fall of DOMA. It was enough to say that the federal government was forbidden from enforcing the federal component of DOMA and to treat all married couples the same.

Interestingly, the parties also argued about a parentage/child birth certificate provision the ACLU added to the revised injunction at the last minute. The Walker administration objected to the language because it supposedly had not been briefed and argued; the attorney said it was an issue for the state supreme court, not the federal district court. The Judge seemed to agree, but said she appreciated that this was "incredibly important." It does not sound like the injunction will include the child-related language we wanted, but we may still be able to make these arguments case-by-case in state courts.

Regarding the stay, the Judge was nodding affirmatively with the very moving argument of the plaintiff-couples made by Attorney David Gault. He argued that a stay should not be entered, notwithstanding the history of stays in this type of high impact litigation. Attorney Gault argued that marriage bans have been getting struck down all over the country in the last few months, momentum is building, the time is now, we have reached a point in history, etc.
However, the Judge then made several comments that imply she will grant the stay. She said she "appreciates" the arguments made by Attorney Gault, and she looked very sincere. But, she said she is just the lowly district court and she is bound by the U.S. Supreme Court. And the U.S. Supreme Court has a long history of stays in high impact cases.

By close of business today, we should have the injunction in hand, in some form, which will make clear what county clerks and Walker and everyone in between must do or must not do. We should also have Judge Crabb's decision on the stay today. We will monitor the court's docketing system for the rest of the afternoon and post as soon as there is a decision.


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