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Judge denies Wisconsin AG’s request for stay in marriage case

U.S. District Judge Barbara Crabb denied Wisconsin Attorney General J.B. Van Hollen’s request for a stay of her decision overturning the state's constitutional amendment against same-sex marriage. That means gay couples can continue to get married in the state.

The state also has an appeal before the appeals court in Chicago.

An estimated 555 couples have married in 60 of Wisconsin's 72 counties since the evening of June 6, when Crabb’s ruling overturned the state constitutional amendment barring same-sex marriages.

On June 6, Van Hollen filed the emergency request for a stay. The judge did not issue a stay and instead set another hearing date with the state and the ACLU for June 19. A news release from the ACLU of Wisconsin said the hearing was to "review the parties’ proposed injunctive language."

ACLU Client Marie Carlson, was encouraged. She said, “We practically live our lives as a married couple as it is. We have a child at home now and our other son is in the Air Force. We’re just normal everyday people, nothing special. Why shouldn’t our family have this freedom?”  Marie and her partner, Charvonne Kemp, plan to marry in October.

Earlier in the day, Van Hollen had appealed to the U.S. Court of Appeals Seventh Circuit. The state, in that appeal, argued that Crabb had effectively denied the stay when she failed to respond to the motion on June 6.

In a statement, the attorney general said, “Nearly two and a half weeks ago, I explained to the federal court in Madison that even though a number of courts throughout the country have nullified state bans on same-sex marriages, those same federal courts, and in some cases appellate courts, following the lead of the U.S. Supreme Court, have stayed those rulings pending appeal. Consistent with those court decisions, and prior to her decision on Friday, I asked Judge Crabb to immediately stay any decision she might issue invalidating Wisconsin’s ban on same-sex marriage. Consistent with my concern for certainty and reliability understanding some actors may choose to take actions based on the decision, I asked for an emergency stay immediately following her decision.

"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. As I continue to defend Wisconsin’s Constitution and the law remains unsettled, procedures like the stay give reliability to officials’ actions and our citizens’ decisions."

Van Hollen said the Supreme Court most likely will decide the issue in the next term and "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. Nor is there any reason to subject any citizen to the stress and legal uncertainty that will result, as it has in other jurisdictions, if they are permitted to immediately contract marriages pursuant to a district court decision that may soon be reversed on appeal."

Gay couples received marriage licenses in Dane and Milwaukee counties on June 6 and June 7. More than 146 couples received licenses in Milwaukee and more than 130 in Dane County. Not everyone who received licenses got married immediately. And some couples who went to courthouses could not obtain licenses because of lack of documents.

Other couples in other counties have been turned away by clerks awaiting clarification on the court's intent.

However, the Rock County Clerk's Office began issuing marriage licenses to qualified same-sex couples on June 9. And officials in Brown and Outagamie counties reversed course and also began accepting applications from gay couples for marriage licenses, as did the clerk's office in Waukesha.

At the clerk's office in Kenosha County, at least one same-sex couple received a marriage license on the morning of June 9.

As the day went on, the number of counties accepting applications continued to grow to include Dodge, Green, Jackson, Door, Columbia, Buffalo, Douglas, Iowa, Fond du Lac, Green, Juneau, Langlade, Manitowoc and Wood.

The American Civil Liberties Union of Wisconsin and the national ACLU filed the federal case on behalf of eight same-sex couples either seeking the freedom to marry in the state or to have the state recognize their out-of-state marriage.

U.S. Rep. Mark Pocan, D-Madison, called Van Hollen's emergency motion "a regressive and blatantly political attempt to revive a hateful and discriminatory law which violates the ideals of liberty and equality in our Constitution."

Pocan, who is gay and married his husband in 2006, added, "Society has changed, barriers to equality continue to be broken down; it's too bad our attorney general is still living in a more hateful day."

Dane County Executive Joe Parisi, after hearing Van Hollen had filed with the appeals court, said, “I’d much rather have our state’s attorney general fighting crime than fighting families. His appeal of this case is a colossal waste of taxpayer dollars and I urge him to reconsider. Our state’s resources would be much better spend reducing the very real problems of opiate addition, child abuse or gang violence — just to name a few.”

State Rep. Chris Taylor also responded: “The joy experienced by families finally obtaining legal recognition of their relationships, which occurred in Madison and Milwaukee last weekend, so clearly illustrates why the discrimination amendment is a stain on our constitution and violates a person’s most basic freedoms. 

“The Attorney General should focus on the pressing issues of his office, not on defending unconstitutional laws that dehumanize our citizens and treat them like 2nd class citizens.”

Same-sex couples can marry in 19 other states and the District of Columbia. More than 70 lawsuits for the freedom to marry have been filed against the other 31 states.

Larry Dupuis, the legal director for the ACLU of Wisconsin, said on June 9 that he was confident future court rulings would be on the side of justice.

"We are confident that the appeals court will review the case and agree with Judge Crabb’s initial finding that this case is about the constitutional cornerstones of liberty and equality. This is about basic rights for people who are being harmed by the current law,” he said.

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