The legal situation for same-sex marriage has been particularly murky in Wisconsin since Friday, and a new announcement from the administration of Gov. Scott Walker (R) might make the situation even more confusing, but it does offer some promise for same-sex couples who have begun marrying across the state.
After Judge Barbara Crabb issued her opinion Friday, same-sex couples began marrying immediately, and they have continued to do so throughout the weekend and this week. Not all counties are issuing licenses, but a majority are. Several hundred couples have married.
What’s interesting is that Judge Crabb doesn’t believe couples should be marrying. Though her ruling declared the ban unconstitutional, it did not include an injunction, the legal force that prevents the law from being implemented. She will consider the extent of her expected injunction during a hearing on Friday. According to her remarks during a conference call on Monday, it was her legal opinion that her decision did not justify the issuing of licenses, but the actions of the state’s clerks are also beyond her purview.
Because there is no injunction, there’s technically nothing for the court to stay, which is why clerks who believe its their legal responsibility to be issuing marriage licenses have continued to do so. The state, who is planning to appeal the decision, responded by indicating that they would not actually process the licenses. The Wisconsin Vital Records Office was collecting the marriage licenses from the counties, but not processing them — even though the couples had already married.
On Wednesday, however, the state changed course and began processing the marriage certificates. According to Health Services spokeswoman Stephanie Smiley, the state is attempting to place the burden on the couples if the ban is upheld: “One there is an ultimate decision made on the issue, the responsibility will be on individuals to make any necessary changes to their record.” These seems to suggest that if a reversed decision should invalidate the marriages performed since Friday, the state would then expect these couples to somehow unmarry themselves.
The fate of these same-sex couples’ marriage is very much still in limbo. If Crabb issues an injunction and doesn’t stay it, then the present situation would likely continue until the Seventh Circuit or U.S. Supreme Court issues a stay pending Wisconsin’s appeal. At that point, marriages would stop, but the legal status of the already-married couples would be in question.
Given the state’s defense of the ban, it could likely follow Utah and Michigan’s examples of not recognizing their validity while the case proceeds. In a separate case about the fate of these “window period” marriages, a federal judge ruled last month that Utah must recognize the more than 1300 marriages that were performed there in December and January.
Walker recently suggested that he’s unsure whether the ban on same-sex marriage is constitutional, though he has long been a supporter of it.