Confusion, celebration in Wisconsin as same-sex marriage legalized

On Friday, for the fifth time since winter, a judge threw out a state’s ban on gay marriage and let the ruling take immediate effect, prompting a wave of confusion and celebration statewide.

The latest state to see its gay couples galvanized into action: Wisconsin.

On Friday evening pairs of men and pairs of women began lining up outside the offices of county clerks in at least two Wisconsin counties in hope of obtaining an officially signed marriage license.

In Dane County, clerk Scott McDonell feverishly processed paperwork; with at least 20 couples still waiting in line, about two hours remained before he planned to close for the day at 9 p.m. Forty couples had been served by 7:30 p.m.

Once they had their licenses, many couples kissed and hugged their way across the street, where black-robed officiants were performing weddings, according to county official Casey Becker.

The legality of the marriages is likely to be questioned. They occurred hours after U.S. District Judge Barbara Crabb in Madison struck down Wisconsin’s ban on same-sex marriage and did not issue a stay.

Wisconsin Atty. Gen. J.B. Van Hollen quickly sought an emergency order to put a stop to the weddings. He said county clerks were wrong to start issuing same-sex marriage licenses because Crabb’s ruling signaled that she did not intend to order them to do so for at least two weeks.

If the judge had wanted gay marriages to start, she could have issued an injunction with her Friday ruling, Van Hollen said in a court filing.

“We’ve seen the disruption to couples and families throughout the U.S. when courts have first allowed same-sex marriage only to have those marriages subsequently called into question by another court,” Van Hollen said in a statement. “I anticipate the U.S. Supreme Court will give finality to this issue in their next term.”

Since the U.S. Supreme Court last summer ruled that parts of the Defense of Marriage Act were unconstitutional, more than a dozen state and federal courts have handed victories to same-sex marriage advocates.

Most of the rulings have been put on hold pending appeal. But in Michigan, Utah, Arkansas, Oregon and now Wisconsin, the lack of stay has allowed for same-sex marriages -- at least in the opinion of some county clerks.

With the exception of Oregon, higher courts eventually stopped clerks from issuing same-sex marriage licenses until appeals are exhausted. Pending those appeals, states have not recognized marriages performed between the lower and higher court rulings, denying the couples immediate access to the same local benefits as opposite-sex couples and leaving them unsure about what to call their relationship.

(In the Oregon case, the state declined to appeal the ruling striking down a ban on gay marriage. Many local officials in Wisconsin urged the state’s lawyers to do the same.)

Indeed, as of Friday, 19 states and the District of Columbia could issue marriage licenses to same-sex couples. But marriage laws are under legal challenge in each of the 31 states that do not. The first appellate court ruling could come as early as next week and serve as the basis to take the issue of gay marriage to the U.S. Supreme Court.

In the Wisconsin case, eight gay or lesbian couples sought either to marry or to have their marriages from other states be recognized. Crabb ruled that the state’s definition of marriage as between a man and a woman violated the couples’ constitutionally guaranteed promise of liberty and equality by denying them access to a “defining rite of passage” in American society.

The clerks in Dane and Milwaukee counties waived the normal requirement that couples wait several days between obtaining a marriage license and holding a wedding. Both counties also planned to continue issuing licenses to same-sex couples on Saturday.

As many as 100 couples received licenses in Milwaukee County on Friday night, according to Dane County Executive Joe Parisi on Twitter.