Gay couples encounter a patchwork of county bans as the state tries to interpret a judge’s decision.
ETTRICK, Wis. – Wisconsin’s marriage laws changed so fast, the paperwork didn’t have time to catch up.
Candace Herbert and Mary Beth Doherty filled out their marriage license this week, working around the lines that designated one of them the bride and the other the groom. They’ll marry Wednesday evening on the banks of the river, surrounded by their children, grandchildren and friends, days after a federal judge ruled Wisconsin’s same-sex marriage ban unconstitutional. The county clerk expedited the license to ensure a terminally ill member of the wedding party could attend.
Across Wisconsin, hundreds of couples have rushed to apply for marriage licenses, many fearful that they would have only a narrow window of opportunity between court challenges. While the state fights to preserve the ban — and reportedly refuses to process any of the new marriage licenses — county clerks are caught in the middle and left to decide on their own whether to allow gay couples to fill out a marriage license.
So far, two-thirds of the counties in Wisconsin have agreed to issue same-sex marriage licenses, although the bulk of the licenses have been issued to couples in the Milwaukee and Madison areas.
State Attorney General J.B. Van Hollen is appealing U.S. District Judge Barbara Crabb’s ruling, and has asked that the court halt same-sex marriages to avoid “the introduction of uncertainty, inconsistency and confusion into Wisconsin’s marriage laws.”
Crabb declined to issue a stay on Monday. And while her Friday ruling overturned the marriage ban, she didn’t order the state to stop enforcing it.
“Unfortunately it’s kind of a mess in the state of Wisconsin,” said St. Croix County Clerk Cindy Campbell, who is not yet issuing same-sex marriage licenses. Because the judge’s ruling did not specifically stop the enforcement of the state’s gay marriage ban, the county’s attorney advised her to hold off until the next court hearing on June 19.
A half-hour south of her, Pierce County Clerk Jamie Feuerhelm was ready to issue marriage licenses to couples who might apply. But so far, none have stopped in at the courthouse in Ellsworth to plunk down the $80 fee.
“Unfortunately this is putting all 72 counties in a quandary,” said Feuerhelm, who based his decision on the fact that the judge ruled the ban unconstitutional. He’s received a few calls from same-sex couples who have been married in other states and countries, asking if they can wed again in Wisconsin. “We tell them the same thing we would tell heterosexual couples: we cannot issues licenses to couples already married elsewhere.”
The American Civil Liberties Union of Wisconsin brought the suit against the state’s gay marriage ban. But ACLU director Christopher Ahmuty says there’s no need to rush to the altar. The state has a long legal slog ahead before the marriage question is settled.
“You don’t need to panic and run down to the clerk’s office,” said Ahmuty, noting that in a community property state like Wisconsin, rushing into a wedding isn’t a good idea for anyone.
After 19 years together, Jay Gilbertson and Ken Seguine were pretty sure they weren’t rushing into anything. They hurried to the Dunn County clerk’s office Monday to pick up a marriage license.
“It’s a joy to be recognized as a married couple, just like my folks,” Gilbertson said.
They’ll be married next week, at their pumpkin farm in Prairie Farm, with a small gathering of family and friends. They’re planning a bigger celebration later in the summer, but for now, they want to have their wedding as quickly as they can, before someone in state government or the courts decides they can’t.
“We’re just going ahead full-force,” said Gilbertson, who is already looking forward to all things that get easier after a marriage, like filing taxes or making a will. The legal uncertainty ahead is “always in the back of our minds, and that’s why we’re rushing, so at least we can say we did it.”
The idea of finally marrying brings “tremendous joy,” Seguine said.
“I’m getting used to the new term — husband. Jay is my husband,” he said with a laugh. “We’ve built a life together and we deserve to have each other’s Social Security” benefits.
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Legalizing same-sex marriages gives couples access to the same legal rights and benefits as heterosexual couples — everything from the right to file jointly on their state taxes to the right to have both parents named on their child’s birth certificate. But in states like Wisconsin, where the legality of gay marriage is in dispute, those rights won’t be settled until the issue works its way to the U.S. Supreme Court, which has already upheld the legality of gay marriage on a federal level.
But as far as the state attorney general’s office is concerned, since Crabb’s ruling didn’t block the state from enforcing its gay marriage ban, the ban should remain in place.
“Wisconsin’s marriage law is in full force and effect, and all state and local officials are under a continuing duty to follow Wisconsin’s marriage law unless and until the court enjoins that law,” Van Hollen said in a statement Monday.
Not only are counties unsure whether to issue marriage licenses, the state’s vital records office is unsure whether it should process them, so it is holding them until it receives guidance from Van Hollen, the Wisconsin State Journal reported Tuesday.
Doherty, who turned 61 Monday, can’t understand Van Hollen and the Wisconsin counties that are resisting the same-sex marriages wave.
“Get with the times,” she said. “I wish our personal lives would be left alone.”
Doherty and Herbert spent the day before their wedding on their three-acre farm in the town of Ettrick, pop. 600, brushing their horses, Casey and Simon, like they do every day.
Two of Herbert’s three children, and four of her grandchildren, will be there when they exchange vows and make Trempealeau County history.
“And my son who couldn’t make it sent a text saying, ‘I’m so proud of you,’ ” said Herbert, 66, who woke twice in the middle of the night to write her vows.
“This is not the Dark Ages anymore,” Doherty said. “This has come around and, eventually, it will be a common occurrence.”