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Justice Thomas objects to refusal to block marriage equality in Alabama

Justice Clarence Thomas says the Supreme Court is inappropriately signaling it intends to clear the way for gay marriage across the nation in a stinging dissent to the high court’s refusal to block the start of same-sex marriages in Alabama.

Bitterly objecting to the Feb. 9 action, Thomas provided a rare insider’s perspective on the widely held view that the court’s embrace of gay marriage is a done deal.

Thomas filed a dissenting opinion after his colleagues rejected Alabama’s plea to put a hold on same-sex marriages in the state until the Supreme Court resolves the issue nationwide in a few months.

He criticized his fellow justices for looking “the other way as yet another federal district judge casts aside state laws,” rather than following the customary course of leaving those laws in place until the court answers an important constitutional question.

“This acquiescence may well be seen as a signal of the court’s intended resolution of that question,” Thomas wrote in an opinion that was joined by Justice Antonin Scalia. “This is not the proper way” for the court to carry out its role under the Constitution, he wrote, “and, it is indecorous for this court to pretend that it is.”

The opinion was remarkable less for the legal result it suggested than for its open criticism of fellow justices.

After all, many legal commentators have predicted not only the case’s outcome this spring (in favor of same-sex marriage), but the vote (5-4) and the author of the majority opinion (Justice Anthony Kennedy).

The number of states in which gay and lesbian couples can marry has nearly doubled since October, from 19 to 37, largely as a result of terse Supreme Court orders that allowed lower court rulings to become final and rejected state efforts to keep marriage bans in place pending appeals.

“If you read the tea leaves the Supreme Court is leaving, the bans on same-sex marriage can’t be permitted. They’re unconstitutional,” said University of California-Berkeley law professor Jesse Choper.

Alabama became the 37th state in which same-sex couples can marry, following U.S. District Judge Callie Granade’s ruling in January that struck down as unconstitutional the state’s statutory and constitutional bans.

Granade had put her order on hold until Feb. 9 to let the state prepare for the change, and State Attorney General Luther Strange had asked for the delay to be extended for at least a few months.

Monday morning, probate judges in Alabama began issuing marriage licenses to same-sex couples, some of whom had been lined up for hours.

“It’s about time,” said Shante Wolfe, 21, as she left the courthouse in Montgomery with wife Tori Sisson. They had camped out in a blue and white tent to be the first in the county given a license.

The Supreme Court can freeze lawsuits in place when they raise the same issue the court already has agreed to decide. And when federal courts declare state laws unconstitutional, “our ordinary practice,” Thomas wrote, is to prevent those rulings from taking effect while they are being appealed.

But since October, the justices have repeatedly turned away state requests to keep same-sex marriages from taking place until appeals are resolved.

Alabama’s plea was the first since the court stepped into the issue last month to take up a decision by the 6th U.S. Circuit Court of Appeals to uphold laws in Kentucky, Michigan, Ohio and Tennessee that define marriage as the union of a man and a woman.

The court has been silent about the reasons for its actions in the gay marriage cases. It similarly offered no explanation for orders in a series of challenges to state voter ID and registration laws in the fall, or for a decision to allow an execution in Oklahoma to proceed eight days before deciding to hear a challenge to the controversial sedative the state uses in lethal injection executions.

“Part of what gives us all a sense of finality and a sense of acceptance about decisions is knowing that the court has thought about it,” said University of Chicago law professor Will Baude, a former law clerk to Chief Justice John Roberts. Baude uses the term “shadow docket” to refer to unexplained orders. “For the public at large, that can over time harm the court’s legitimacy.”

Thomas has previously made known his support for keeping the same-sex marriage prohibitions in place until the court issues its decision. Although he did not note it in October, he later said he had voted at that time to take up gay marriage when the court rejected appeals from five states seeking to preserve same-sex marriage bans.

Thomas and Scalia also have been in dissent from the three major pro-gay rights decisions at the Supreme Court since 1996, all written by Kennedy. When the court struck down part of the anti-gay marriage federal Defense of Marriage Act in 2013, Roberts and Justice Samuel Alito also dissented.

Michael Dorf, a former Kennedy law clerk who teaches at Cornell University, said the absence of Roberts and Alito from Thomas’ dissent Monday suggests those justices could be part of a broader majority in favor of same-sex marriage this year, with Roberts the more likely candidate.

Other than that, Dorf said, the justices’ order allowing same-sex marriage to begin in Alabama, “is further evidence that the court intends to reverse the 6th circuit and find a constitutional right to same-sex marriage.”

Federal judge stays marriage equality ruling in Alabama

A federal judge has put a temporary hold on her decision that overturned Alabama’s gay marriage ban, but indicated she will soon answer a key question: Must state probate judges issue marriage licenses to same-sex couples when the stay is lifted?

U.S. District Judge Callie V. S. Granade on Jan. 25 refused the Alabama attorney general’s request to put her ruling on hold until the U.S. Supreme Court takes up the issue of gay marriage later this year. However, Granade did issue a 14-day stay to give the state time to ask the 11th U.S. Circuit Court of Appeals for a lengthier delay.

Alabama Attorney General Luther Strange called the delay a “step in the right direction” because it will allow the state time to prepare appellate arguments and perhaps settle questions about the effect of the ruling. Advocates of gay marriage rights expressed disappointment but were confident they would ultimately prevail.

“While we’re disappointed that committed, loving gay and lesbian couples in Alabama will not be able to marry (Monday), we’re hopeful the final legal barriers will be overcome quite soon,” Human Rights Campaign Alabama director Ashley Jackson said.

Some hoping to get married swiftly expressed disappointment over the two-week hold.

Tori Sisson and Shante Wolfe of Tuskegee were prepared to camp outside the Montgomery courthouse all night Sunday in hopes of securing a marriage license first thing Monday from a judge who indicated he would be issuing them absent a stay.

“It’s aggravating. The judge ruled and everybody got so excited and now, this,” Sisson said.

The stay will expire Feb. 9 unless the court extends it.

Granade said within that time that she will issue a separate order clarifying the effect of her ruling on those seeking and issuing marriage licenses across Alabama.

Lawyers for the Mobile couple that brought the original suit requested the clarification after the Alabama Probate Judges’ Association advised judges that they should not issue licenses to same-sex couples.

The group maintained that ruling declaring the ban unconstitutional only applies to the parties in that case, and that it doesn’t require judges to issue marriage licenses to other same-sex couples.

“As probate judges, our duty is to issue marriage licenses in accordance with Alabama law and that means we cannot legally issue marriage licenses to same sex couples,” Monroe County Probate Judge Greg Norris said.

Some judges disagreed with that view and indicated they were prepared to issue licenses on Monday.

David Kennedy, an attorney for the plaintiffs in the case, said the judges’ association needed to “embrace reality” that the ban had been struck down.

Granade had ruled on Jan. 23 that Alabama’s statutory and constitutional bans on gay marriage were in violation of the U.S. Constitution. That ruling was the latest in a string of victories for same-sex marriage advocates around the Deep South. Still, the judge’s order reverberated in a state considered one of the Bible Belt’s most socially conservative, drawing praise and disbelief from some and scorn from others.

The ruling striking down the marriage ban came out of a case filed by Cari Searcy and Kim McKeand of Mobile. The couple said the ban prevented Alabama from recognizing their 2008 California marriage and Searcy as a parent to the son they had together. McKeand gave birth to the child in 2005, but the court’s rejected Searcy’s adoption petition because the couple was not legally married.

Strange’s office had sought to put Granade’s order on hold until the U.S. Supreme Court rules. The state argued there would be widespread confusion if couple’s got married, but the marriages were later ruled invalid.

Granade said it was inappropriate, in her view, to continue to delay.

“As long as a stay is in place, same-sex couples and their families remain in a state of limbo with respect to adoption, child care and custody, medical decisions, employment and health benefits, future tax implications, inheritance and many other rights associated with marriage,” she wrote.

Same-sex couples could marry in Florida as early as January

The 11th Circuit Court of Appeals on Dec. 3 denied Florida’s motion for stay of a U.S. District Court ruling that overturned the state’s ban on marriage for same-sex couples.

The stay is scheduled to expire at the end of the day on Jan. 5, 2015, which is when same-sex couples could begin applying for marriage licenses in the state.

“We are thrilled that the 11th Circuit has denied the state’s request to delay marriages in Florida. Every day of delay is another day of harm experienced by thousands of loving and committed same-sex couples in Florida. Now it’s time to break out the wedding bells,” said Nadine Smith, CEO of Equality Florida, the statewide LGBT civil rights group. “Florida is ready for the freedom to marry.”

U.S. District Judge Robert Hinkle ruled for marriage equality on Aug. 21 in two cases, Brenner v. Scott  and Grimsley and Albu v. Scott.

Hinkle issued a stay with the ruling, to allow the state time for an appeals. That stay is set to expire on Jan. 5.

The state of Florida had requested that the appeals court extend the stay until the appeals process is completed.

The question now is whether the state will ask the U.S. Supreme Court for a stay.

Arkansas ban on gay marriage overturned in federal court

A federal judge struck down Arkansas’ voter-approved gay marriage ban on Nov. 25 but stopped any rush to the altar by putting her order on hold so the state can consider an appeal.

U.S. District Judge Kristine Baker ruled in favor of two same-sex couples who had challenged a 2004 constitutional amendment and earlier state law defining marriage as between a man and a woman. The couples argued the ban violated the U.S. Constitution and discriminated based on sexual orientation.

“The fact that Amendment 83 was adopted by referendum does not immunize it from federal constitutional scrutiny,” Baker wrote in her ruling.

The state’s marriage laws and the amendment violate the U.S. Constitution by “precluding same-sex couples from exercising their fundamental right to marry in Arkansas, by not recognizing valid same-sex marriages from other states, and by discriminating on the basis of gender,” she wrote.

Baker put the ruling on hold, anticipating an appeal to the 8th U.S. Circuit Court of Appeals, based in St. Louis.

A spokesman for Democratic Attorney General Dustin McDaniel said McDaniel was reviewing the ruling and would decide after the Thanksgiving holiday whether to appeal in consultation with Republican Attorney General-elect Leslie Rutledge.

“We appreciate Judge Baker’s implementation of a stay in this matter in order to avoid confusion and uncertainty as this case goes through the appeals process,” spokesman Aaron Sadler said in an email.

Jack Wagoner, a lawyer for the couples who had told the judge last week that same-sex marriage would eventually be legal nationwide, said he was pleased with her decision.

“She’s on the right side of history,” Wagoner said. “It’s pretty clear where history’s heading on this issue.”

Another lawyer, Cheryl Maples, said eyes would turn now to the state Supreme Court, which heard arguments last week in a similar but separate case.

“If the state Supreme Court strikes down on state constitutional issues, then it’s gone as far as it can go,” Maples said.

Justices are weighing whether to uphold Pulaski County Circuit Judge Chris Piazza’s decision in May striking down the 2004 amendment and earlier state law as unconstitutional. Piazza’s decision led to 541 same sex couples getting married in the week before the state Supreme Court suspended his ruling.

Justices have not indicated when they will rule in that case. The lawsuit before the state Supreme Court also argues the ban violates Arkansas’ constitution.

The head of the group that campaigned for the ban said he was pleased that Baker suspended her ruling and said he hoped the state would move quickly to appeal.

“It’s our hope that eventually the will of the people of Arkansas will be upheld rather than the wishes of judges,” Jerry Cox, president of the Arkansas Family Council, said.

Lawyers in McDaniel’s office had argued in federal court that same-sex marriage was not a fundamental right guaranteed by the constitution. McDaniel has said he personally supports allowing gay couples to marry but will stay in court defending the ban, which voters approved by a 3-1 margin. Rutledge, his successor, has said she opposes gay marriage and has vowed to defend the ban.

Judges across the country have ruled against bans similar to Arkansas’ since the U.S. Supreme Court struck part of a federal anti-gay marriage law in June 2013, and gay marriage is legal in more than half of the U.S.

Chad Griffin, an Arkansas native who heads the Human Rights Campaign, the nation’s largest gay rights group, praised the judge’s ruling.

“I am proud to be an Arkansan by birth, but I’ll be even prouder when this shameful stain on the state Constitution is erased once and for all,” Griffin said in a statement.

Supreme Court denies stay, same-sex couples to marry in Idaho

The U.S. Supreme Court on Oct. 10 denied a stay of the Ninth Circuit decision striking down Idaho’s marriage equality ban, allowing marriage equality to take effect in that state.

Idaho still has the option to petition the U.S. Supreme Court for certiorari. However, the state cannot refuse to grant same-sex couples marriage licenses pending a decision by the Supreme Court.

“Today’s Supreme Court order is yet another critical step in the path towards full nationwide marriage equality,” said Human Rights Campaign legal director Sarah Warbelow. “Same-sex couples cannot wait while the judicial process plays out, and the Supreme Court clearly agrees.”

Earlier this week, a three-judge panel for the Ninth Circuit Court of Appeals ruled that state bans on marriage rights for same-sex couples are unconstitutional. The court found that Idaho and Nevada’s marriage bans violate the 14th Amendment to the U.S. Constitution on the basis of equal protection.

Nevada declined to appeal the Ninth Circuit decision while Idaho requested an emergency stay and signaled their intent to challenge the decision. Justice Anthony Kennedy issued a temporary stay on Oct. 8.

Also this week, the nine justices of the Supreme Court announced they had declined to hear any of the cases pending before them challenging state bans on marriage for same-sex couples. This allowed the circuit court decisions striking down the bans to stand in five states, including Wisconsin.

Gallup puts support for marriage equality at 55 percent, with other polls showing support at even higher margins.

And support for same-sex marriage rights continues to grow in virtually every demographic group.

U.S. Rep. Moore asks Wisconsin to hold off on voter ID law

U.S. Rep. Gwen Moore is calling on the Wisconsin Government Accountability Board to wait until after the general election to implement the state voter ID law.

The Democratic representative from Milwaukee made the request in a letter to Kevin J. Kennedy, director and general counsel for GAB. She wrote as the American Civil Liberties Union of Wisconsin asked for a full federal appeals court review of the ruling that removed the injunction against the voter ID law, Act 23.

That decision by a three-judge panel of the Seventh Circuit Court of Appeals cleared the way for the GAB and the Walker administration to enforce the law in the midterm elections, even though the election process already is underway.

Advocates of the law say it will help protect the integrity of the voting process. The measure passed in 2011 requires voters to show government-issued photo IDs — driver’s licenses, state ID cards, some college student and military IDs, passports and naturalization certificates or IDs issued by a Wisconsin-based American Indian tribe.

Opponents maintain that the law violates the U.S. Constitution and will make it difficult — or impossible — for some citizens to exercise their right to vote. Critics also say requiring people to acquire certain IDs amounts to a poll tax.

Moore has opposed the legislation. And in her letter, she asked that the GAB at least wait to implement the controversial act until after the Nov. 4 election because of “the irreparable harm and mass confusion it will cause.”

She wrote, “Enforcing Act 23 for the November election will … cause widespread confusion for voters and election officials. Until the Seventh Circuit decision … it is my understanding that election officials were operating under the assumption that no voter ID law would be in place. For example, it has been reported that over 11,000 absentee ballots have already been mailed without voter ID instructions. Further, it would be a tremendous burden on the state to sufficiently train 1,852 municipal clerks and countless poll workers before the election.”

Moore continued, “It is also disturbing that there have been no public education efforts on voter ID for over two years, and many of my constituents in the 4th Congressional District are unaware that they will need to obtain an ID. Moreover, the new ‘free ID’ guidance, in response to the Wisconsin Supreme Court ruling, is untested and likely to be insufficient to provide IDs to everyone who is lacking in light of the short time frame.”

The congresswoman, not alone among Democrats in objecting to the law, said it would be irresponsible to proceed with the change before the election.

Federal appeals court lifts stay against Wisconsin voter ID law

A federal appeals court in Chicago reinstated Wisconsin’s voter photo identification law on Sept. 12, just hours after three Republican-appointed judges heard arguments on reactivating the hotly debated law in time for the November election.

While reinstating the law on Sept. 12, the court did not issue a full opinion, saying it would do that “in due course.”

In a brief order, a three-judge panel of the 7th Circuit Court of Appeals in Chicago said, “The State of Wisconsin may, if it wishes … enforce the photo ID requirement in this November’s elections.”

Wisconsin officials wasted no time in saying they would do just that.

“We are taking every step to fully implement the voter photo ID law for the November general election,” said Kevin Kennedy, the state’s top election official. “We are now focused on communicating with local election officials and voters, and will have more information about the details next week.”

Wisconsin’s conservative Republican governor, Scott Walker, heralded the court’s decision as a victory for his state.

“Voter ID is a common sense reform that protects the integrity of our voting process,” he said in a statement released by his office. “Today’s ruling makes it easier to vote and harder to cheat.”

Many Democrats expressed outrage.

“This ruling will disenfranchise Wisconsin voters and lower voter turnout in this fall’s election,” Democratic state Rep. JoCasta Zamarripa, of Milwaukee, said in a statement.

She also worried the bid to implement the law less than two months before the Nov. 4 election would cause confusion among election officials and voters.

A lower court judge, U.S. District Judge Lynn Adelman struck the law down as unconstitutional in April, saying it unfairly burdens poor and minority voters who may lack such identification. Republican Attorney General J.B. Van Hollen asked the 7th Circuit to overturn that ruling.

During an hourlong hearing on Sept. 12, the panel sounded skeptical about depictions of the law as discriminatory.

Under the 2011 measure, those arriving at polling stations must produce a government-issued ID with a photo to vote. Because of legal challenges, the requirement had not been enforced since the February 2012 primary.

Similar disputes have arisen in nearly a dozen other states, including Pennsylvania and Texas. Republicans who back such laws say they’re designed to combat voter fraud. Critics say they’re crafted to keep Democratic-leaning constituencies — such as minorities and poor people — from voting.

During arguments, Assistant Wisconsin Attorney General Clayton Kawski told the panel noted he had to show ID to enter the courthouse. If photo IDs are required for getting into some buildings or onto a plane, Kawski suggested, they should be required for something far more important — an election.

But an attorney for civil rights groups said there’s no proof of any notable election fraud in Wisconsin. John Ulin shot back at proponents who say the law would engender voter confidence saying, “The law achieves the opposite effect.”

In issuing an injunction against the law in April, Adelman found that 300,000 registered voters in Wisconsin didn’t have the proper ID. Adelman noted the 2010 gubernatorial race was decided by about 125,000 votes.

During arguments, Judge Frank Easterbrook, a Ronald Reagan appointee, cited figures that 2.4 percent of whites in Wisconsin can’t obtain the needed ID to vote, while 4.5 percent of blacks can’t. He asked whether that 2 percent gap between whites and blacks makes the law discriminatory.

“The answer to your question is that it can and, in this case, it does,” Ulin responded.

The other two judges on the panel were Diane Sykes and John Tinder, both appointees of Republican President George W. Bush.

In a statement, Wisconsin AFL-CIO president Phil Neuenfeldt said, “The Seventh Circuit Court just turned back the clock on democracy by giving the green light to the voter suppressing Voter ID law. This law will disfranchise countless Wisconsinites and block citizens from freely participating in our democracy.  This is a desperate attempt by Gov. Walker to rig elections. In Wisconsin, we should be encouraging people to get involved and take part in elections, not putting up roadblocks and barriers for people to cast their ballot.”

He continued, “No matter what, the union movement is working hard every day to educate and inform voters about this crucial election.”

The ACLU brought the federal challenge to the law. 

Chris Ahmuty, the ACLU of Wisconsin’s executive director, said on Sept. 12, “We are very disappointed in the irresponsible decision to lift the injunction against Voter ID, which will cause chaos and disruption for voters and elections workers for the November election.  The state has not demonstrated it is prepared to make this new ID scheme work. The new procedures were presented at the last second and it is unclear whether or how they will work in time to ensure that eligible voters are actually able to vote. It has not demonstrated how it will train 1,852 municipal clerks and tens of thousands of poll workers, as well as notifying voters of the new rules. We will continue to review and closely monitor this decision.”

3rd Florida court strikes down amendment barring same-sex marriage

A third circuit court in Florida has struck down the state’s constitutional amendment denying recognition of out-of-state same-sex marriages and barring gay couples from marrying within the state.

The ruling on Aug. 4 came from Broward Circuit Judge Dale Cohen, who said the amendment is unconstitutional. The decision applies only to Broward County.

Cohen is the third judge to rule against the state ban since early July.
Said Nadine Smith, CEO of Equality Florida, “Every win in court brings us closer than we’ve ever been to the freedom to marry in Florida. We look forward to the day when all loving, committed couples and their families enjoy the same protections, opportunities and responsibilities of marriage under the law.  Every passing day inflicts real hardships on families who are denied the legal protection and dignity that marriage equality provides.”

Cohen’s ruling came in a lawsuit filed by Heather Brassner, who had entered into a civil union in Vermont and sought a divorce in Florida. The judge had indicated that he was not prepared to grant the divorce without addressing the constitutionality of the same-sex marriage ban — and the same-sex marriage recognition ban, according to Nancy Brodzki, Brassner’s attorney.

So Brodzki filed a motion for the judge to rule on the amendment.

The judge issued an immediate stay on his ruling, which means same-sex couples cannot marry in Broward County.

Florida Attorney General Pam Bondi has appealed the judges’ decision in the Miami-Dade and Monroe County cases and is expected to appeal the Broward decision as well.
Last week, Equality Florida delivered more than 7,000 petitions to Bondi’s office, calling on the attorney general to drop her appeals. Similar campaigns are being developed in South Carolina and Wisconsin. 

Judge issues halt to same-sex marriages in Wisconsin, leaves nearly 600 married couples in legal limbo

U.S. Circuit Court Judge Barbara Crabb issued a reluctant stay this afternoon requiring county clerks to stop issuing same-sex marriage licenses in Wisconsin.

Crabb said she was required by legal precedent to issue the injunction pending Wisconsin Attorney General J.B. Van Hollen’s appeal to the 7th Circuit Court of Appeals in Chicago.

Van Hollen has worked frantically to secure a stay ever since the marriages began on June 6 after Crabb ruled Wisconsin’s same-sex marriage ban is unconstitutional. He’s threatened to prosecute county clerks who’ve issued licenses to same-sex couples — a threat that Crabb said Van Hollen had no standing to make good on.

“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,” Crabb said in a statement announcing the stay. “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. However, a federal district court is required to follow the guidance provided by the Supreme Court. Because I see no way to distinguish this case from Herbert, I conclude that I must stay any injunctive relief pending appeal.”

Crabb’s ruling puts more than 555 marriages that have already occurred in 60 of Wisconsin’s 72 counties in legal limbo, perhaps for years. An ACLU spokesperson said that couples who were married in Wisconsin over the past week will not have to get married again if Van Hollen ultimately loses his religious war against gay and lesbian equality. 

This is a rapidly changing story and WiG will provide continuous updates as it develops.

Judge denies Wisconsin AG’s request for stay in marriage case

U.S. District Judge Barbara Crabb denied Wisconsin Attorney General J.B. Van Hollen’s request for a stay of her decision overturning the state’s constitutional amendment against same-sex marriage. That means gay couples can continue to get married in the state.

The state also has an appeal before the appeals court in Chicago.

An estimated 555 couples have married in 60 of Wisconsin’s 72 counties since the evening of June 6, when Crabb’s ruling overturned the state constitutional amendment barring same-sex marriages.

On June 6, Van Hollen filed the emergency request for a stay. The judge did not issue a stay and instead set another hearing date with the state and the ACLU for June 19. A news release from the ACLU of Wisconsin said the hearing was to “review the parties’ proposed injunctive language.”

ACLU Client Marie Carlson, was encouraged. She said, “We practically live our lives as a married couple as it is. We have a child at home now and our other son is in the Air Force. We’re just normal everyday people, nothing special. Why shouldn’t our family have this freedom?”  Marie and her partner, Charvonne Kemp, plan to marry in October.

Earlier in the day, Van Hollen had appealed to the U.S. Court of Appeals Seventh Circuit. The state, in that appeal, argued that Crabb had effectively denied the stay when she failed to respond to the motion on June 6.

In a statement, the attorney general said, “Nearly two and a half weeks ago, I explained to the federal court in Madison that even though a number of courts throughout the country have nullified state bans on same-sex marriages, those same federal courts, and in some cases appellate courts, following the lead of the U.S. Supreme Court, have stayed those rulings pending appeal. Consistent with those court decisions, and prior to her decision on Friday, I asked Judge Crabb to immediately stay any decision she might issue invalidating Wisconsin’s ban on same-sex marriage. Consistent with my concern for certainty and reliability understanding some actors may choose to take actions based on the decision, I asked for an emergency stay immediately following her decision.

“The point of a stay is obvious to most: it preserves the status quo during the appeal process and prevents the introduction of uncertainty, inconsistency, and confusion into Wisconsin’s marriage laws. As I continue to defend Wisconsin’s Constitution and the law remains unsettled, procedures like the stay give reliability to officials’ actions and our citizens’ decisions.”

Van Hollen said the Supreme Court most likely will decide the issue in the next term and “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. Nor is there any reason to subject any citizen to the stress and legal uncertainty that will result, as it has in other jurisdictions, if they are permitted to immediately contract marriages pursuant to a district court decision that may soon be reversed on appeal.”

Gay couples received marriage licenses in Dane and Milwaukee counties on June 6 and June 7. More than 146 couples received licenses in Milwaukee and more than 130 in Dane County. Not everyone who received licenses got married immediately. And some couples who went to courthouses could not obtain licenses because of lack of documents.

Other couples in other counties have been turned away by clerks awaiting clarification on the court’s intent.

However, the Rock County Clerk’s Office began issuing marriage licenses to qualified same-sex couples on June 9. And officials in Brown and Outagamie counties reversed course and also began accepting applications from gay couples for marriage licenses, as did the clerk’s office in Waukesha.

At the clerk’s office in Kenosha County, at least one same-sex couple received a marriage license on the morning of June 9.

As the day went on, the number of counties accepting applications continued to grow to include Dodge, Green, Jackson, Door, Columbia, Buffalo, Douglas, Iowa, Fond du Lac, Green, Juneau, Langlade, Manitowoc and Wood.

The American Civil Liberties Union of Wisconsin and the national ACLU filed the federal case on behalf of eight same-sex couples either seeking the freedom to marry in the state or to have the state recognize their out-of-state marriage.

U.S. Rep. Mark Pocan, D-Madison, called Van Hollen’s emergency motion “a regressive and blatantly political attempt to revive a hateful and discriminatory law which violates the ideals of liberty and equality in our Constitution.”

Pocan, who is gay and married his husband in 2006, added, “Society has changed, barriers to equality continue to be broken down; it’s too bad our attorney general is still living in a more hateful day.”

Dane County Executive Joe Parisi, after hearing Van Hollen had filed with the appeals court, said, “I’d much rather have our state’s attorney general fighting crime than fighting families. His appeal of this case is a colossal waste of taxpayer dollars and I urge him to reconsider. Our state’s resources would be much better spend reducing the very real problems of opiate addition, child abuse or gang violence — just to name a few.”

State Rep. Chris Taylor also responded: “The joy experienced by families finally obtaining legal recognition of their relationships, which occurred in Madison and Milwaukee last weekend, so clearly illustrates why the discrimination amendment is a stain on our constitution and violates a person’s most basic freedoms. 

“The Attorney General should focus on the pressing issues of his office, not on defending unconstitutional laws that dehumanize our citizens and treat them like 2nd class citizens.”

Same-sex couples can marry in 19 other states and the District of Columbia. More than 70 lawsuits for the freedom to marry have been filed against the other 31 states.

Larry Dupuis, the legal director for the ACLU of Wisconsin, said on June 9 that he was confident future court rulings would be on the side of justice.

“We are confident that the appeals court will review the case and agree with Judge Crabb’s initial finding that this case is about the constitutional cornerstones of liberty and equality. This is about basic rights for people who are being harmed by the current law,” he said.

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