Updated: 06/09/2014 10:27 PM
Created: 06/09/2014 6:49 AM KSTP.com
Gay couples across Wisconsin rushed to wed Monday, as more than half of the counties in the state began issuing licenses ahead of an expected hold on a ruling that the state's same-sex marriage ban is unconstitutional.
U.S. District Judge Barbara Crabb in Madison struck down the ban Friday in an American Civil Liberties Union lawsuit challenging the prohibition. But she didn't order county clerks to begin issuing licenses or block them from handing them out. Instead, she asked the ACLU to submit a proposed order spelling out how the organization wants her decision implemented, which the ACLU did late Monday.
For now, her stance has left county clerks to decide on their own whether they can legally issue licenses to same-sex couples. Clerks in Milwaukee and Madison, the state's liberal hubs, began issuing licenses to same-sex couples within hours of the ruling. Together the counties issued 238 licenses on Friday and Saturday.
At least 42 of Wisconsin's 72 counties were issuing marriage licenses to same-sex couples on Monday, according to a canvass by The Associated Press. Clerks in a handful of counties did not answer phone calls. Many, but not all, also waived the state's five-day waiting period.
Dozens of couples were initially refused licenses in Appleton, Green Bay and elsewhere on Monday while county clerks in those communities sought advice from the Wisconsin Vital Records Office, which keeps marriage records. Nearly 100 people at the Outagamie County Clerk's office in Appleton objected when told they could not apply for licenses.
"We did tell them we weren't leaving until licenses were issued," said Kathy Flores, 47, of Appleton, who hopes to marry her partner, Ann Kendzierski.
Soon after, Outagamie County attorney Joe Guidote told couples that he had advised Clerk Lori O'Bright to accept applications for licenses. Flores said later that she knew one couple who received a waiver because a parent was very ill.
Brown County Clerk Sandy Juno said she decided to issue licenses to about 10 couples at her Green Bay office after failing to reach anyone in the Wisconsin Vital Records Office. She said she explained to couples the work would stop as soon as a court put the judge's decision on hold.
Waukesha County Clerk Kathleen Novack said her office west of Milwaukee began accepting applications for licenses about 9:30 a.m. Monday after she talked to a county attorney, saw what other counties were doing and spoke with waiting couples. Her office had issued about a half-dozen licenses in the first half-hour and expected perhaps two dozen or so more by the end of the day.
The Rock County clerk's office in Janesville said it issued two licenses before noon on Monday. Kenosha County Clerk Mary T. Schuch-Krebs said she gave a license to one couple who told her they planned to marry that night.
"I don't see anything that tells me otherwise," she said.
St. Croix County deputy clerk Cheryl Harmon said a county attorney told her office in Hudson not to issue licenses until after Crabb's June 16 deadline for the ACLU to submit its proposed order. La Crosse County Clerk Ginny Dankmeyer said her county's attorney initially gave the same advice but she issued a license later in the day, after Crabb refused Republican Attorney General J.B. Van Hollen's request for an emergency order halting the marriages.
But how long the couples' window stays open is anyone's guess.
Van Hollen also appealed Crabb's decision to the 7th Circuit Court of Appeals and asked it to stop the ceremonies.
"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," Van Hollen said in a statement.
Crabb said in rejecting Van Hollen's request for an emergency hold that clerks weren't issuing licenses because of anything she did. The judge said since she hasn't yet issued an order it's not clear what Van Hollen wants to stop. Once both sides have a chance to weigh in on the scope of the ACLU's proposed order she'll decide whether to put it on hold, she said.
The group said its proposal would require state officials to let gay couples marry and to recognize gay marriages performed in other states.
The 7th Circuit, meanwhile, could rule at any moment.
University of Richmond law professor Carl Tobias said Saturday he expected Crabb's order to be put on hold. But he noted that more than 1,000 couples married in Utah before a hold was issued there, and a judge recently said those marriages were valid. That decision, like others related to gay marriage, has been appealed.
Given events around the nation, Tobias said he expects the U.S. Supreme Court to weigh in on the issue next year.
"I'm cautiously optimistic that everything will be fine for those couples," Tobias said, "but we just don't know right now."
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