MADISON, Wis. – A federal judge 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 was 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 on the implications of a stay before deciding. 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.
Judge gives no guidance
The judge’s comments effectively mean that for now the state will remain divided into such counties as Dane, Milwaukee and Waukesha, where clerks are issuing same-sex marriage licenses, and such counties as Ozaukee, Washington and Racine, where they are not.
Wisconsin law requires residents to apply for marriage licenses in the county where they live.
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 although she had struck down the marriage ban, she had given no orders on it so far to state and local officials, 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.”
The hearing in Madison was one of two actions that state Attorney General J.B. Van Hollen took in two different federal courts Monday seeking an emergency halt to gay weddings. In the rapidly unfolding case, the Republican attorney general asked Crabb for a stay on Friday evening and again in Monday’s hearing and also filed a petition for a stay with the U.S. 7th Circuit Court of Appeals in Chicago.
Dane County Clerk Scott McDonell, a Democrat, stepped out of Crabb’s hearing Monday and said he would continue to issue marriage licenses to same-sex couples.
“The status quo is what we’re doing now and [in] other counties, which is issuing marriage licenses,” McDonell told reporters.
Later, he acknowledged, “I’m sure that’s not what the state means by status quo.”
Backing up McDonell was David Gault, an assistant corporation counsel in Dane County, which is controlled by a Democratic county executive and liberal county board. Gault said Crabb’s decision Friday was “unambiguous” and that there is no prohibition on same-sex couples getting married.
“We’re not speculating,” he said. “We’re following the black letter of her decision.”
Attorneys for the state Department of Justice, which is defending the gay marriage ban, declined to comment on Crabb’s statement.
In a statement earlier Monday, Van Hollen said it made no sense to let marriages proceed when the courts are likely to put them back on hold, at least temporarily, and leave those couples in legal limbo.