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Wisconsin is a house divided on gay marriage

June 10, 2014 at 6:05AM

Sam Tasoul, left, and Sara Rabideau had hoped to get a marriage license in Outagamie County in northwest Wisconsin. Later, the county took applications. (The Minnesota Star Tribune)

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.

"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.

Precedents elsewhere

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.

In Outagamie County, Clerk Lori O’Bright said she wasn’t able to issue marriage licenses and was waiting for the state’s OK. The decision was later reversed, and applications were accepted. (The Minnesota Star Tribune)