U.S. District Judge Barbara Crabb late Friday reluctantly stayed her ruling declaring Wisconsin's ban on same-sex marriages unconstitutional. The marriages that have taken place in Dane County and across the state will now stop, pending Attorney General J.B. Van Hollen's appeal of Crabb's ruling.
"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 wrote in her order. "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."
But, she added, "a federal court is required to follow the guidance provided by the Supreme Court." Because the Supreme Court recently issued a stay on a similar decision overturning a state ban on same-sex marriage, Crabb concluded she must "stay any injunctive relief pending appeal."
Crabb held a Friday afternoon hearing on the proposed injunction from the ACLU, which represents the eight couples suing the state to legalize same-sex marriage. The ACLU had requested that Crabb bar the state from enforcing its ban on same-sex marriage.
But Crabb declined to rule from the bench. In a written decision later, she granted the ACLU's injunction and then immediately stayed that ruling.
In her order she writes that clerks are "enjoined from denying a marriage license to a couple because both applicants for the license are the same sex."
Crabb noted during the hearing that the ACLU's injunction request -- which spells out how the judge's ruling should be enforced -- was too vague. She said it was important to give clear instructions to county clerks, a majority of whom have been issuing marriage licenses to same-sex couples since her June 6 ruling.
"I have a duty to make clear what it is they can and can't do to comply with the order," Crabb said.
Crabb said that the county clerks who have issued licenses to same-sex couples were "essentially acting on their own."
"I never told them they could and I never told them they couldn't," she said.
The state's lawyers argued that the language in the injunction was too broad, since the lawsuit was solely about the legal right to marry and not the accompanying rights and privileges.
"This goes far beyond that," said an attorney with the Department of Justice.
John Knight, director of the LGBT and AIDS Project with the ACLU, countered that the lawsuit has always been about "all the rights and benefits that come with marriage."
Crabb indicated during the hearing that she felt her hands were tied. She noted that the U.S. Supreme Court in recent months issued a stay in a similar case. "District courts must follow the rules of the Supreme Court," she said. "I'm just at the bottom level of this system."
Attorney General J.B. Van Hollen issued a statement saying he would appeal Crabb's June 6 ruling to the 7th Circuit Court of Appeals, "challenging the District Court's underlying ruling that portions of Wisconsinâ€™s marriage law and Article XIII, Section 13 of the state constitution violate the federal constitution."
In an 88-page decision, Crabb declared that the state's constitutional amendment violates same-sex couples' "fundamental right to marry and their right to equal protection of laws under the Fourteenth Amendment to the United States Constitution." Her decision also struck down any Wisconsin laws that limit marriages to a "husband" and a "wife."
Dane County Clerk Scott McDonell and Milwaukee County Clerk Joe Czarnezki started issuing marriage licenses to same-sex couples after Crabb released her ruling on June 6. Van Hollen filed his first motion for an emergency stay even before Crabb issued her ruling and another one about an hour after the decision was issued.
When Crabb did not rule on the stay over the weekend, Van Hollen filed a motion for an emergency stay on June 9 with the 7th Circuit Court of Appeals.
Crabb, however, scheduled a hearing on the stay request that afternoon. At that time she declined to issue a stay but noted she would likely go that route eventually because nearly every other federal judge who has struck down same-sex marriage bans in other states has also issued stays.
The judge said she would rule on the stay once she issued an order on the terms of the injunction requested by the ACLU.
The ACLU filed its injunction request late Monday, and the attorney general responded on June 11.
The Court of Appeals did ask the parties in the lawsuit to submit briefs on whether it has jurisdiction to decide on an emergency stay, but has not issued a ruling.
Read the complete order and stay issued by Judge Crabb.
[Editors note: This article was corrected to remove the name of Thomas Bellavia, who was misidentified as the DOJ attorney at the Friday hearing.]