U.S. District Judge Barbara Crabb didn’t immediately rule after Friday’s hearing, but hinted that she is likely to halt further marriages after a week in which more than 500 gay couples were married around Wisconsin. Crabb said she “probably” would issue her order later Friday.
“I’ll try to make whatever I decide plain, clear, understandable,” Crabb told attorneys challenging the law after being asked whether she will give direction to clerks about what to do next.
Friday’s hearing came exactly one week after Crabb ruled the state’s ban on gay marriage was unconstitutional. But Crabb didn’t issue any orders on how state officials were to implement her decision, and amid the uncertainty, nearly every Wisconsin county – 60 of 72 – issued licenses.
Attorney General J.B. Van Hollen is appealing Crabb’s ruling and sought a hold on further marriages. Crabb seemed to suggest she would grant it, referring to the Supreme Court’s action to grant just such a stay in Utah when the district court there failed to do so.
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“I’m just at the bottom level of the system,” Crabb said.
Dane County Clerk Scott McDonell said after the hearing he would “greatly appreciate direction from her,” but he expected based on Crabb’s comments in court that she would put the ruling on hold and thereby stop clerks from issuing licenses.
John Knight, attorney for the American Civil Liberties Union, which challenged the law, said no matter what Crabb does, “We’re very confident ultimately we will prevail.”
While Crabb considers what to do next, Van Hollen has also asked the 7th U.S. Circuit Court of Appeals to take the case and put Crabb’s ruling on hold. The appeals 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.
Crabb reiterated in the 30-minute hearing Friday that clerks were issuing licenses to same-sex couples on their own.
“I never told them not to and I never told them to do it,” Crabb said.
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.
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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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