Wisconsin’s attorney general asked a federal appeals court to halt same-sex weddings, three days after a lower court overturned the state’s ban on gay marriage and set off a rush to the courthouse by couples seeking to wed.
The June 6 ruling by U.S. District Judge Barbara Crabb in Madison that the law was unconstitutional made Wisconsin the 26th state where same-sex marriage has been deemed legal by court decision, legislation or popular vote. Rulings in six of those places have been delayed pending the outcome of appeals.
Wisconsin Attorney General J.B. Van Hollen is challenging Crabb’s decision and today announced an “emergency” filing for a stay with the U.S. Court of Appeals in Chicago.
“The point of a stay is obvious to most: It preserves the status quo during the appeal process and prevents the introduction of uncertainty, inconsistency and confusion into Wisconsin’s marriage laws,” Van Hollen said in a statement.
While Crabb found the state’s prohibition invalid, she didn’t expressly block its enforcement and set up an almost three-week schedule under which couples suing for the right to wed would submit a proposed order for the court to issue to Wisconsin officials. The state would get time to respond.
Crabb said she would then consider the state’s request to defer enforcement of that order during the appeal.
Some county clerks last week concluded they were no longer barred from issuing marriage licenses to same-sex couples, enabling judges in the state’s biggest city, Milwaukee, and its capital, Madison, to preside over Wisconsin’s first gay weddings.
Since the June 6 ruling, 145 licenses have been issued in Milwaukee County , Natalie Stuempfl, an assistant county clerk, said today. Melanie Conklin, a spokeswoman for Dane County Clerk Carlo Esqueda, said 137 have been given to same-sex couples there. Madison is the Dane County seat.
West of Milwaukee, Waukesha County Clerk Kathleen Novack said her office is issuing licenses to gay couples with a separate paper telling them their ability to wed is still open to review.
Waukesha officials and attorneys met for an hour today before deciding how to proceed, Novack said in a phone interview.
“There’s a lot to weigh back and forth,” she said. “The decision could be overturned, but absent that or any stay order, we concluded that we needed to honor the decision.”
Van Hollen on June 6 had asked Crabb for an order stopping those proceedings.
The Madison judge today rejected that request, finding the state defendants hadn’t convinced her they were entitled to it. Crabb also said there was no final order for her to stay, merely her declaration that Wisconsin’s gay marriage ban violates the U.S. Constitution.
“I understand defendants’ concern that some county clerks have been issuing marriage licenses to same-sex couples since I issued the June 6 decision,” she said. “But that is not a result of an injunction by this court.”
If the state believes any county clerk is issuing marriage licenses in violation of the law, “that is an issue outside the scope of this case,” Crabb said.
Van Hollen, in a statement, said the state’s marriage laws as codified still stand and all state and local officials are required to enforce them unless ordered not to.
At least 20 Wisconsin counties have started issuing marriage licenses to same-sex couples, according to a statement issued today by the American Civil Liberties Union.
The case is Wolf v. Walker, 14-cv-00064, U.S. District Court, Western District of Wisconsin (Madison). The appellate case is Wolf v. Walker, 14-2266, U.S. Court of Appeals for the Seventh Circuit (Chicago).