A week after striking down Wisconsin’s ban on same-sex marriage as unconstitutional, a federal judge in Madison, Wis., issued an order Friday postponing her decision pending the outcome of an expected appeal.
But US District Judge Barbara Crabb took the action 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.
Judge Crabb had been asked two weeks ago by state officials to issue a stay of any ruling striking down the state’s same-sex marriage ban until the issue could be heard by an appeals court.
The officials expressed concern that same-sex marriages should not be performed until appellate courts have an opportunity to examine the underlying legal and constitutional issues.
On Friday, the judge acknowledged that there had been “much confusion among county clerks” regarding the legal effect of her decision last week.
Judge Crabb said she was reluctantly granting the temporary stay.
“After seeing the expressions of joy on the faces of so many newly wedded couples featured in media reports, I find it difficult to impose a stay on the event that is responsible for eliciting that emotion, even if the stay is only temporary,” she said.
“Same-sex couples have waited many years to receive equal treatment under the law, so it is understandable that they do not want to wait any longer,” she wrote. “However, a federal district court is required to follow the guidance provided by the Supreme Court.”
A similar issue arose after a federal judge in Utah struck down that state’s ban on same-sex marriages in December and refused to stay his decision to allow time for an appeal.
The US Supreme Court intervened in that case and ordered the federal judge to issue a stay. By the time the judge did so, more than 1,000 Utah couples had already married.
In Michigan, some 300 same-sex couples were married in the time between a federal judge’s refusal to issue a stay and an appeals court’s order that the Michigan decision be postponed.
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. State bans on same-sex marriage have been struck down by nine different federal judges since December. Prior to the Wisconsin case, stays were issued in six of those cases.
In two states, Oregon and Pennsylvania, no stay was issued because state officials declined to file an appeal. That action effectively ended each case and opened the way for same-sex marriages in both those states.
But federal judges stand in a different posture in states where same-sex marriage amendments and statutes are being defended by state officials who intend to file an appeal.
Given the repeated requests for a stay by Wisconsin Attorney General J. B. Van Hollen, Judge Crabb’s delay appears to have been an effort to game the system to allow same-sex couples to marry before a stay was issued. Her delay in issuing an injunction to specifically allow the marriages to go forward effectively blocked the state attorney general from obtaining a stay from an appeals court.
Judge Crabb’s Friday order and opinion was 14 pages, but she offered no explanation for her refusal to promptly address the stay issue after her June 6 opinion was released.
In the ongoing national debate over same-sex marriage, some analysts believe that “creating facts” by allowing gay men and lesbians to marry in a state that bans same-sex marriages will make it harder for appeals courts and, ultimately, the US Supreme Court to uphold state-based marriage restrictions.
But others say the practice of rushing through as many marriages as possible under questionable legal authority lends an air of lawlessness and chaos to what is supposed to be a judicial system governed by the rule of law.
In Wisconsin, same-sex couples immediately went to courthouses on June 6 as word of Judge Crabb’s decision spread. In some cases, county clerks agreed to issue licenses, in others the clerks refused because the judge had not yet issued an injunction instructing state officials how to respond to her decision.
After learning of the make-shift weddings shortly after the June 6 decision, state officials contacted Judge Crabb and asked that she issue a clarification. Instead of issuing a clarification, the judge scheduled a hearing for the following Monday – an action that 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.
“They may have acted and they may have acted in response, but they did not act because I told them they could,” the judge told lawyers in the hearing. “I never said anything about whether any county clerk could go forward with issuing a marriage license,” she said. “That hasn’t been decided.”
The judge added: “I think it would be remiss of me not to say that I anticipate that there will be a stay in this case simply because that’s what every federal court has done in similar situations and similar rulings.”
Frustrated by the delay, Van Hollen asked a federal appeals court panel in Chicago to issue a stay to prevent further marriages from taking place.
“The court’s action of declaring the challenged provisions of Wisconsin law unconstitutional while postponing a decision on the [state’s] request to preserve the status quo, has opened the door for some county clerks to immediately begin issuing marriage licenses to same-sex couples,” the state said in its brief to the Seventh US Circuit Court of Appeals.
The Wisconsin officials said the judge’s actions and inaction were “conclusively disrupting the status quo that the state defendants sought to preserve.”
The appeals court responded in a brief order that because Judge Crabb had not yet issued an injunction, she had not yet delivered a final opinion eligible for an appeal. The appeals court expressed doubt that it had the requisite jurisdiction to act in the case. The appeal is pending.
Ultimately, county clerks issued marriage licenses in 60 of Wisconsin’s 72 counties over the past week.
Attorney General Van Hollen had announced that clerks are not authorized to issue marriage licenses to same-sex couples until Judge Crabb delivers her injunction. He said officials could be prosecuted for violating Wisconsin law.
Crabb said in her order that if it had been left entirely to her, she would require that her opinion be enforced immediately. But she noted that she could not ignore the Supreme Court’s action in the Utah case.
In addition to the stay, the judge issued an injunction that will instruct Wisconsin officials of how they are to enforce her order if the stay is lifted.
The injunction says 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.”
The case is Wolf v. Walker (14CV64).