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“The U.S. Supreme Court will almost certainly decide this important issue once and for all during its next term. There is absolutely no reason to allow Wisconsin’s county clerks to decide for themselves, on a county-by-county basis, who may and may not lawfully get married in this state,” he said.
In the meantime, some county clerks and registers of deeds in Wisconsin are going ahead issuing marriage licenses and certificates to more same-sex couples, while other county officials are waiting for clarification from the state on Crabb’s ruling.
Also Monday, Dane County Register of Deeds Kristi Chlebowski delivered the first batch of finalized same-sex marriage certificates to state officials. That led to unprecedented uncertainty about whether Gov. Scott Walker’s administration would accept the certificates, as the typically clerical elements of a marriage contract become politicized and fraught with controversy.
Carl Tobias, a professor at the University of Richmond School of Law, said that he was cautiously expecting either Crabb or the 7th Circuit to issue a temporary stay of Crabb.
Tobias, who has followed the surge in lawsuits over gay marriage around the country, pointed to an Idaho case in which the 9th Circuit Court of Appeals issued a temporary stay of a decision striking down a gay marriage ban. That case cited another stay that was issued by the U.S. Supreme Court in a separate, but similar case in Utah.
“It’s a reluctant yes,” Tobias said of his hunch that a stay is coming. “That’s the way things have played out” elsewhere.
Crabb’s 88-page decision was different from the others around the country because although she ruled Wisconsin’s ban against same-sex marriage was unconstitutional, she did not issue an order instructing county and state officials on what to do about it.
That left the county clerks and judges to decide.
From Friday to Saturday, 283 same-sex couples were issued marriage licenses in Dane and Milwaukee counties, according to Van Hollen’s filing.
At least 42 of Wisconsin’s 72 counties issued marriage licenses to same-sex couples on Monday, according to a canvass by the Associated Press. Clerks in a handful of counties did not answer phone calls. Many, but not all, also waived the state’s five-day waiting period.