A federal judge in Madison issued an order on Friday postponing her decision pending on the outcome of an expected appeal just a week after striking down Wisconsin’s ban on same-sex marriage as unconstitutional in Washington.
On the other hand, only after more than 550 same-sex couples in the state cited her June 6 decision in order to get married over the past seven days, US District Judge Barbara Crabb took the action. Until the issue could be heard by an appeals court, Judge Crabb had been asked by state officials to issue a stay of any ruling striking down the state’s same-sex marriage ban,two weeks ago.
The officials expressed concern that until appellate courts have an opportunity to examine the underlying legal and constitutional issues, same-sex marriages should not be performed.
“There had been much confusion among county clerks”, the judge acknowledged on Friday, regarding the legal effect of her decision last week.
She further added that she was reluctantly granting the temporary stay.
“I find it difficult to impose a stay on the event that is responsible for eliciting that emotion after seeing the expressions of joy on the faces of so many newly wedded couples featured in media reports, even if the stay is only temporary,” she said.
A similar incident arose in Utah after a federal judge struck down the state’s ban on same-sex marriages in December and refused to stay his decision to allow time for an appeal.
The federal judge was ordered to issue a stay by the US Supreme Court. But by that time, more than 1,000 Utah couples had already married.
Prior to the Wisconsin case, stays were issued in six of those cases. State bans on same-sex marriage have been struck down by nine different federal judges since December.Federal judges usually follow the lead of higher courts on an issue such as whether to issue a stay in a case involving an identical issue.Sometimes same-sex marriage amendments and statutes are being defended by state officials who intend to file an appeal.
Even after repeated requests by Wisconsin Attorney General J. B. Van Hollen for a stay, the delay caused by Judge Crabb’s appeared to be an effort to game the system to allow same-sex couples to marry before a stay was issued.The delay in issuing an injunction effectively blocked the state attorney general from obtaining a stay from an appeals court and specifically allow the marriages to go forward.
As word of Judge Crabb’s decision spread in Wisconsin, same-sex couples immediately went to courthouses on June 6. County clerks agreed to issue licenses in some cases, ,whereas in others the clerks refused because the judge had not yet issued an injunction instructing state officials how to respond to her decision.
State officials contacted Judge Crabb and asked that she issue a clarification but Instead of issuing a clarification, the judge scheduled a hearing for the following Monday and the action permitted marriages to continue throughout the weekend.
At the Monday hearing, the judge acknowledged that she was aware that weddings were taking place, but she said it was the result of actions by clerks and not anything she had done.
Van Hollen who was frustrated by the delay asked a federal appeals court panel in Chicago to issue a stay to prevent further marriages from taking place.
The appeals court responded in a brief order that as the appeal is pending, it is doubtful that it had the requisite jurisdiction to act in the case.Consequently, marriage licenses in 60 of Wisconsin’s 72 counties was issued by county clerks over the past week.
In addition to the stay, an injunction was issued by the judge that instructed Wisconsin officials about how to enforce Crabb’s order if the stay is lifted.
According to the injunction state officials are permanently enjoined from denying a marriage license to a couple because both applicants for the license are the same sex.
The injunction also orders Gov. Scott Walker to treat same-sex couples the same as different sex couples in the context of processing a marriage license or determining the rights, protections, obligations or benefits of marriage.