MILWAUKEE — 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 6 ordered county clerks to stop enforcing the state’s gay marriage ban but she put that ruling on hold Friday while an appeal from Republican Attorney General J.B. Van Hollen is pending.
“It hurts, you know,” Lisa Akey said after the ruling Friday, 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 Wednesday, after receiving guidance from Van Hollen’s office that it could move ahead.
But Van Hollen said Thursday 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 Saturday, 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 issuing licenses. As of midday Thursday, 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 now before the 10th U.S. Circuit Court of Appeals. Four of those couples have asked a federal appeals court to allow Utah to recognizing 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.
“They usually save their hardest cases for the end, and this may be one of those,” Tobias said.
U.S. Attorney General Eric Holder has said the federal government will honor the gay marriages in Utah. A call to the Department of Justice Saturday wasn’t immediately returned.