A federal judge’s order for Wisconsin officials to stop issuing same-sex marriage licenses didn’t address the legal status of the more than 550 gay marriages conducted in the last week, and subsequent statements by state officials have not removed the uncertainty.
U.S. District Judge Barbara Crabb on June 13 ordered county clerks to stop enforcing the state’s gay marriage ban but she put that ruling on hold while an appeal from Republican Attorney General J.B. Van Hollen is pending.
“It hurts, you know,” Lisa Akey said after the ruling, a day after she married her partner of 16 years in Marathon County. “It’ll hurt more if I find out that what I did yesterday was basically pointless, but it definitely does hurt.”
State income taxes, pensions and health insurance are among many issues affected by a person’s legal marriage status.
The Wisconsin Vital Records Office started processing same-sex marriage licenses June 11, after receiving guidance from Van Hollen’s office that it could move ahead.
But Van Hollen said June 12 that same-sex couples with marriage licenses aren’t legally married, because Crabb had not told county clerks how to interpret her ruling striking down the ban. His spokeswoman, Dana Brueck, reiterated that position in an email June 14, saying Wisconsin’s marriage law — including the same-sex marriage ban Crabb originally ruled against — was in force pending Van Hollen’s appeal. Brueck acknowledged, however, that the validity of the marriages remained uncertain.
Sixty of Wisconsin’s 72 county clerks had been issuing licenses. As of midday June 12, 555 same-sex couples had gotten married in the state, based on an Associated Press survey. Couples who were in the middle of the five-day waiting period to get a license, which most counties waived, also are caught in a legal limbo.
John Knight, attorney for the American Civil Liberties Union, which challenged the law, said they see the marriages as valid.
Carl Tobias, a law professor at the University of Richmond School of Law who tracks gay marriage cases nationwide, said the legality of those new Wisconsin marriages isn’t clear and that could cause problems.
“The most basic one is joint filing of taxes,” he said. “I think the harder questions are like adoptions, the really hard issues. That’s why these stays are so gut-wrenching for people.”
He noted similar situations developed in Utah and Michigan.
In Utah, more than 1,000 couples married over 17 days in late December and early January after a judge struck down the state’s 2004 ban. The marriages stopped when the U.S. Supreme Court stayed that ruling, pending an appeal that is now before the 10th U.S. Circuit Court of Appeals. Four of those couples have asked a federal appeals court to allow Utah to recognize their marriages.
“Certainly the Wisconsin couples could undertake that task if they wanted to,” Tobias said. But he suggested there was little point. He expects the issue to go to the Supreme Court this fall, pushing a resolution well into 2015.
U.S. Attorney General Eric Holder has said the federal government will honor the same-sex marriages in Utah. A call to the Department of Justice on June 13 wasn’t immediately returned.
Gay couples already can wed in 19 states and Washington, D.C. Legal challenges are currently pending in all 31 states with gay marriage bans. Judges have overturned several of these state bans since the U.S. Supreme Court struck down part of a federal anti-gay marriage law last year, with Wisconsin being the latest. Many of those rulings are being appealed.