U.S. Appeals Court sends mixed signals on gay marriage case

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Jason Stein/Milwaukee Journal Sentinel
Tuesday, June 10, 2014

MADISON —A federal appeals court unexpectedly shot off on a new course Tuesday and then just as quickly pulled back, raising questions about the future of a state appeal seeking to put gay marriages on hold in Wisconsin.

The latest pair of orders from the U.S. 7th Circuit Court of Appeals in Chicago underline the fact that for now it is up to county officials and, possibly, state courts to decide whether same-sex unions continue around the state.

As of 3 p.m. Tuesday four more same-sex couples applied for marriage licenses and were wed at the Rock County Courthouse, bringing the number of same-sex couples married this week in the county to 12.

Rock County Clerk Lori Stottler said she would rather issue the licenses to people now than turn them away.

The licenses do however, come with a warning.

A document at the Rock County Clerk's Office advises staff to inform couples that the clerk is not responsible for the legality of the marriage union and that refunds will not be issued for any reason.

It goes on to say that “those applicants who do not marry prior to a legal action that a stay or an injunction of the current ruling of Judge Crabb could potentially lose rights to file a license with the register of deeds, making the marriage unrecognized by the state of Wisconsin.”

All applicants are told and must confirm they understand the ramifications and are willing to enter into the application with this understanding, according to the document.

In a one-sentence order issued late Monday, the 7th Circuit had asked parties in the case to file papers by 5 p.m. Wednesday addressing whether the appellate court has jurisdiction in the federal lawsuit that resulted in the state's constitutional ban on gay marriage being struck down Friday.

But after further review, the panel of appellate judges Richard A. Posner, Michael S. Kanne and Ilana Diamond Rovner issued two more orders Tuesday responding to a motion by state Attorney General J.B. Van Hollen that sought a temporary halt to same-sex unions happening around Wisconsin.

The three-judge panel noted in one of Tuesday's orders that the judge in the original court in Madison has yet to issue a final order in the case. They ordered Van Hollen to respond by June 23 on whether the appellate court can even take up any appeal before U.S. District Judge Barbara Crabb issues an injunction blocking state officials from enforcing the marriage ban.

"The (district) court has yet to determine the specifics of the injunctive relief which it intends to enter," the 7th Circuit order reads. "...In short, this case is not at an end in the district court."

But the panel then quickly vacated this Tuesday order, saying it had been issued in error. It was unclear whether the error was in the legal reasoning of the order or simply in its timing.

In a hearing Monday — three days after issuing her historic ruling striking down the state's same-sex marriage ban — Crabb rejected a similar but separate request from Van Hollen, a Republican, to stay her decision. But Crabb also signaled that she or the 7th Circuit is likely to put the brakes on her ruling at some point in the coming weeks. That in turn would block county officials around the state from issuing marriage licenses to gay and lesbian couples while the decision is appealed.

Crabb's decision Friday was different from others around the country. While she ruled that Wisconsin's ban on same-sex marriage was unconstitutional, she did not issue an order instructing county and state officials on what to do about it, leaving county clerks to decide that for themselves for the time being.

In Monday's hearing and in a written follow-up order released later in the day, Crabb said she was leaving the "status quo" in place until she issues specific orders to public officials. She set her next hearing for June 19.

Dozens of Wisconsin's 72 counties are issuing marriage licenses to same-sex couples this week and dozens are not, with more counties reversing course by the hour and beginning to issue them.

Walworth County Clerk Kimberly Bushey said her county is not issuing same-sex marriage licenses until they receive more guidance from the state.

“We are still waiting for more information,” Bushey said. “At this point there are a lot of unknowns.”

Bushey said her office turned away one same-sex couple, and the office has received several emails and phone calls inquiring about the county's status.

“At this point, there is no additional information outside of the press release issued by the attorney general which gives us our direction,” Bushey said. “I wish (the state) would (give us more information.)”

When asked by state attorneys Monday about the inconsistency from county-to-county, Crabb said it was an issue for state courts to decide if needed, not her.

Wisconsin Law School Professor Linda Greene said it is unclear whether the marriages performed in Rock County would be recognized, but she expects the state to recognize them.

“Judge Crabb's opinion stated that she would issue an order after both sides provided input,” Greene said. “But her request was for information which she would use to write a detailed order to provide future guidance to all Wisconsin officials who might have to act as a result of her decision, e.g. tax officials, etc.

"She was unequivocal when she declared the Wisconsin ban unconstitutional, and county clerks don't need any further guidance from her as to what they must do to comply," Greene said.

Greene said precedent in other states on same-sex legislation varies, but she believes if the 7th Circuit decides to issue a stay, the marriages performed prior to the stay probably would be valid. The state could wait on affording benefits related to the marriage until litigation is complete, she said.

“There are two next steps, the hearing on (June) the 16th when the parties weigh in … and the federal appeals court decision on Van Hollen's request to stay Judge Crabb's order. But until she issues an order that tells Wisconsin officials what they may or may not do, the federal appeals court has nothing to halt.”

Meanwhile, Gov. Scott Walker's administration is declining for the moment to accept the same-sex marriage certificates that are being forwarded to the state by county registers of deeds.

"The Wisconsin Department of Health Services Office of Vital Records has not rejected same-sex marriage licenses," agency spokeswoman Jennifer Miller said in a statement. "They are being held until we receive legal guidance from the attorney general."

Miller did not immediately provide figures on how many certified licenses have been sent to the state by county officials since Crabb's ruling came down.

On Monday, Dane County Register of Deeds Kristi Chlebowski delivered the first batch of completed same-sex marriage certificates to state officials.

Chlebowski said that as of 12:30 p.m. Monday she had received about 60 marriage licenses for same-sex couples that were issued over the weekend. She said she sent out five marriage certificates at that point and hand-delivered copies of those five to the Wisconsin Department of Health Services' Vital Records office.

Rock County Register of Deeds Randal Leyes said certificates from same-sex marriage performed at the Rock County Clerk's Office are being filed like any other document.

“We're treating them just like any other marriage,” Leyes said. “It's not up to me to determine if they are valid or not.”

Leyes said the documents are checked for accuracy upon receipt, then recorded and filed.

The couples are free to receive a certified copy from the county, he said.

“We would have liked to have had some guidance from the state, but we haven't gotten anything,” Leyes said. “My job is to treat it like I would any other document.”

After a hearing before Crabb Monday, the two sides immediately disagreed over what the judge's responses to them meant.

"Wisconsin's marriage law is in full force and effect, and all state and local officials are under a continuing duty to follow Wisconsin's marriage law unless and until the court enjoins that law," Van Hollen said in a statement.

In the hearing, state Assistant Attorney General Timothy Samuelson said a stay was essential because counties are taking different actions on the issue.

"We have inconsistency among the counties," he told Crabb.

In an earlier written statement, Van Hollen said it made no sense to let marriages go forward right away when the courts are likely to put them back on hold, at least temporarily, and leave those couples in legal limbo.

"The U.S. Supreme Court will almost certainly decide this important issue once and for all during its next term. 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," he said.

Carl Tobias, a professor at the University of Richmond School of Law in Virginia, said he was expecting either Crabb or the 7th Circuit to issue a temporary stay stopping the same-sex marriages.

Tobias, who has followed the surge in lawsuits over gay marriage bans around the country and believes that such prohibitions are unconstitutional, pointed to an Idaho case in which the 9th Circuit Court of Appeals issued a separate stay of a decision striking down a gay marriage ban. That order cited an earlier stay that was issued by the U.S. Supreme Court in a separate but similar case in Utah.

"It's a reluctant yes," Tobias said of his hunch that a stay will eventually come. "That's the way things have played out (elsewhere)."

From Friday to Saturday, 283 same-sex couples were issued marriage licenses in Dane and Milwaukee counties, according to Van Hollen. Other counties did not issue such licenses before Monday.

--Gazette reporter Nick Crow contributed to this report.

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