MADISON, Wis. — Both sides in the fight over same-sex marriages in Wisconsin are headed back to federal court Friday afternoon for a hearing that could determine whether the weddings can continue.
The hearing before U.S. District Judge Barbara Crabb comes exactly one week after she struck down the state’s ban on gay marriages as unconstitutional. But Crabb did not issue any orders as to how state officials were to implement her decision, leading to confusion over whether clerks could marry people and whether those marriages are legal.
Nearly every Wisconsin county – 60 out of 72 – was issuing licenses as of Thursday. Some counties were not waiving the five-day waiting period, leaving an estimated 60 couples or more in limbo as Crabb decides whether to put her ruling on hold pending appeals.
The American Civil Liberties Union, which filed the lawsuit challenging Wisconsin’s constitutional amendment in February on behalf of eight gay couples, argued that Crabb should order state officials to let gay couples marry and to recognize same-sex marriages performed in other states.
Republican Attorney General J.B. Van Hollen objected, saying that request was too broad. He wants Crabb to put her ruling on hold, which would stop marriages in the state while he appeals her underlying ruling. Van Hollen has asked the 7th U.S. Circuit Court of Appeals to take the case and put Crabb’s ruling on hold, but the court has not yet said what it intends to do.
As of midday Thursday, 555 same-sex couples had gotten married in the state, based on an Associated Press survey of all 72 counties. There was a rush to get married in Madison and Milwaukee on June 6, when Crabb released her decision, and then again earlier this week throughout the state as other counties began issuing licenses.
Van Hollen said Thursday that same-sex couples with marriage licenses aren’t legally married because Crabb hasn’t issued an order telling county clerks how to interpret her ruling striking down the law. Van Hollen also said district attorneys could charge clerks who issued licenses with a crime.
Article continues belowBut the ACLU and others say because Crabb found the law unconstitutional, and didn’t order clerks not to issue licenses, they can legally give them to couples seeking to get married.
Wisconsin’s constitutional amendment, approved by 59 percent of voters in 2006, outlawed gay marriage or anything substantially similar. The ACLU said the ban violated the constitutional rights of eight gay couples to equal protection and due process and Crabb agreed.
Gay rights activists have won 15 consecutive lower court cases since a landmark Supreme Court ruling last summer, with Wisconsin being the latest.
A final ruling on Wisconsin’s case likely is months away.
The U.S. Supreme Court is expected to weigh in during its next session beginning in October.
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