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Same sex marriage: Judge denies emergency stay but says ability to issue licenses still undecided

by
Judge Barbara Crabb
JB Van Hollen (properly sized)
Judge Barbara Crabb

MADISON, Wis. (WSAU) -- A hearing was held before U.S. District Judge Barbara Crabb, where Wisconsin’s Attorney General requested an emergency stay to Crabb’s Friday ruling on gay marriage.

A motion to stay the ruling was denied. Judge Crabb said since an appeal was filed, she believes it is beyond her authority to grant the motion. Judge Crabb did reiterate that Wisconsin’s marriage law has not been enjoined, meaning in this case she did not issue an order to stop doing what the existing Wisconsin law calls for, which is a ban on gay marriage. Crabb said, “I understand defendants’ concern that some county clerks have been issuing marriage licenses to same-sex couples since I issued the June 6 decision, but that is not a result of an injunction by this court. Thus, if defendants believe that a particular county clerk is issuing a marriage license in violation of state law, that is an issue outside the scope of this case.”

Attorney General J.B Van Hollen issued a statement after the hearing. He said, “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 plaintiffs want an injunction to stop Wisconsin from blocking same sex marriages. Crabb would not give the injunction without a very specific request for what they want the state to do or stop doing. “ Plaintiffs have represented to the court that they will provide language for a proposed injunction today. In doing so, plaintiffs should take care to identify what they want each defendant to do. Under Fed. R. Civ. 65, plaintiffs must identify the particular acts they want defendants to perform or refrain from performing.”

Milwaukee and Dane counties issued a large number of same sex marriage licenses over the weekend, and several other county clerks had been advised by corporation councils in their counties to issue them if requested. In light of Monday afternoon’s hearing, the Attorney General can still block same sex marriages until an injunction is ordered.

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