David Michael Miller
McDonell (center): The judge's ruling 'did not instruct my office or any other office to not issue marriage licenses.'
The euphoria at the Dane County Clerk's Office might be short-lived.
Even as same-sex couples lined up Friday afternoon to get married following a federal court ruling overturning Wisconsin's ban on same-sex marriage, Attorney General J.B. Van Hollen declared that "current law remains in force."
About an hour later Van Hollen filed an emergency order with U.S. District Barbara Crabb, who had issued an 88-page written decision issued earlier in the day declaring Wisconsin's same-sex marriage ban unconstitutional.
Van Hollen said he was filing for an emergency stay "in light of the decision of some county clerks to issue marriage licenses to same-sex couples." Clerks in Dane County and Milwaukee County had each prepared for a ruling overturning Wisconsin's same-sex marriage ban and were ready for the couples that started lining up late Friday.
"We have reviewed the judge's ruling," Dane County Clerk Scott McDonell said to media before the first couple received their marriage license. "It overturned the constitutional amendment banning same-sex marriage. It did not instruct my office or any other office to not issue marriage licenses, so we plan on staying open until 9 tonight and from 9 to 5 tomorrow.
In a statement, Van Hollen said there was precedent for receiving the injunction he sought.
"The United States Supreme Court, after a referral from Justice [Sonia] Sotomayor, stayed a lower court’s decision striking down Utah's ban on same-sex marriage."
Van Hollen had already asked Crabb to immediately stay her ruling should she find Wisconsin's same-sex marriage unconstitutional. But she did not do that on Friday, saying in her decision that she would address it after the plaintiffs and defendants in the cases filed briefs on the matter. She imposed a June 16 deadline for those briefs.
If Crabb does not grant this second request, the Attorney General's Office would then have to file an appeal for an emergency injunction with the federal court of appeals in Chicago.
In his motion Friday to Crabb, Van Hollen said the fact that marriage licenses have already been issued to same-sex couples in Wisconsin "is precisely the type of confusion and uncertainty that the State Defendants intended to avoid by requesting a motion to stay."
He also said that the "Milwaukee and Dane County clerks' issuance of marriage licenses to same-sex couples this weekend creates the non-uniform result that some same-sex couples can marry and others cannot."
It was not clear Friday night whether clerks outside of Milwaukee and Dane counties had also issued marriage licenses to same-sex couples.
If Crabb does not grant a temporary stay on her ruling, Van Hollen asked alternately to "schedule an emergency telephonic hearing to clarify the scope of the order."