Judge Barbara Crabb: 'It would be remiss for me to say there will not be a stay because that's what every federal court has done in similar rulings.'
But she said she might issue one in the future.
"It would be remiss for me to say there will not be a stay because that's what every federal court has done in similar rulings," Crabb said at a hearing Monday at the federal courthouse in downtown Madison. The one exception, she noted, was in Oregon, where the state did not appeal.
"The U.S. Supreme Court has stepped in and issued injunctions," she said. "It's a fact of life."
Crabb ordered again that the parties submit briefs to her, starting with the plaintiffs, who plan to argue why Crabb should enjoin the state from enforcing the state's constitutional ban on same-sex marriage. And she scheduled another hearing for Thursday, June 19.
Assistant Attorney General Timothy Samuelson asked Crabb where that left things. She answered, "the status quo."
Since Department of Justice lawyers had appealed for a return to the "status quo" in their arguments for a stay, there was some confusion in the courtroom on the meaning of Crabb's words.
But Dane County Clerk Scott McDonell said outside the courtroom that same-sex marriages would continue in Dane County.
"Nothing changed," he said.
"We asked her to tell us [what to do regarding issuing marriage licenses] and she passed on that. Once she invalidated the constitutional amendment and statutes associated with that, there's nothing I could say to a couple that came to my office wanting to get married as to why they couldn't get married. So that's what the status quo is now."
Department of Justice spokeswoman Dana Brueck later issued a statement from Van Hollen saying that "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."
The counsel for the Wisconsin Counties Association, however, issued an advisory Monday afternoon noting that clerks could process marriage licenses from same-sex couples, but that they had discretion in waiving the five-day waiting period for licenses.
"Importantly, Judge Crabb did not enter an order requiring any governmental body or official to take, or refrain from taking, any particular action," the alert read.
Crabb said that her ruling neither prohibits nor authorizes county clerks to issue marriage licenses to same-sex couples.
In the absence of such an order, she said she could not grant a stay because her ruling had simply been a "declaratory judgment."
"I could not find any authority for a stay of a declaration," she said.
The DOJ lawyers argued that a stay was necessary because some Wisconsin clerks were granting marriage licenses to same-sex couples and some were not. "So we are now faced with an inconsistent application of the law," said Samuelson.
Crabb suggested that was not necessarily a matter for the federal courts.
"If county clerks are doing something the state thinks is improper, wouldn't you go to state court?"
Larry Dupuis, an attorney with the American Civil Liberties Union of Wisconsin, said his office would soon submit its request for an injunction to Crabb. It will ask the judge to, among other things, order county clerks to issue marriage licenses to same-sex couples.
"We're going to ask that the state defendants be ordered to recognize marriages performed outside of state, to recognize marriages performed since the judge's ruling, and to direct all state departments that have authority over the various benefits, privileges and obligations of marriage to provide those to same-sex couples."
The ACLU is representing eight couples in its suit against the state. Defendants include Gov. Scott Walker and Van Hollen.
Van Hollen has also filed for an emergency stay with the U.S. Court of Appeals in Chicago.
Dupuis said that an appeals court usually waits for the lower court to rule.
"The general rule is that until you have a final judgment, there is no jurisdiction in the Court of Appeals. And there is no final judgment."