DOJ, ACLU To Make Final Arguments On How To Proceed With Gay Marriage Ban

At a 1 p.m. hearing in Madison on Friday, attorneys for the state and the American Civil Liberties Union will present arguments on how to proceed now that Wisconsin’s same-sex marriage ban has been found unconstitutional.

The hearing will set the stage for U.S. District Judge Barbara Crabb to enter a final order on the law.

According to the Associated Press, at least 60 of Wisconsin’s 72 county clerks are now issuing marriage licenses to gay couples based on their interpretation of Crabb’s June 6 ruling.

ACLU attorney Larry Dupuis said the next step is to order the state to grant legal status to the hundreds of marriages that have already occurred and any that will occur in the future. He’ll also ask the judge not to stay the ruling, pending an appeal already filed with the Seventh Circuit Court of Appeals.

“Obviously, I am hoping that maybe they will see that it’s better to accept freedom to marry in this state, but I’m not holding my breath for that,” said Dupuis.

Attorney General J.B. Van Hollen’s attorneys will be pushing for a stay. Van Hollen said he’s confident one will be issued soon, and suggested that even before a stay, district attorneys could step in and bar county clerks from issuing any more marriage licenses to same-sex couples.

“The issue of county clerks issuing what we believe to be invalid marriages (is) going to be confusing and difficult to unravel – which, once again, is a very important part of the reason why we need a stay,” said Van Hollen.

University of Richmond constitutional law professor Carl Tobias said it’s unlikely any DAs will try to stop county clerks from issuing more licenses.

“I think people will continue to be married, and they will consider themselves married, and we’ll find out later whether those marriages are valid or not,” said Tobias.

Crabb could issue both a ruling and a stay on Friday afternoon. The Seventh Circuit could weigh in soon after that.

Correction: The radio version of this story said that the federal ruling on the same-sex marriage ban was handed down on May 6. It was actually handed down on June 6.