MADISON, Wis. — A federal judge struck down Wisconsin’s ban on same-sex marriage today, but her decision resulted in confusion over whether gay couples could immediately be given marriage licenses.
Clerks in Madison and Milwaukee planned to start marrying same-sex couples despite disagreement over the effect of the ruling. However, both Republican Attorney General J.B. Van Hollen and Chris Ahmuty, director of the Wisconsin chapter of the American Civil Liberties Union, which challenged the law in court, said the ruling did not clear the way for marriages to begin.
But clerks in the state’s two largest cities weren’t waiting for clarification. Milwaukee County Executive Chris Abele said he was keeping his courthouse open until 9 p.m. to begin marrying same-sex couples.
“I have been waiting decades for this day to finally arrive and we won’t make loving couples wait longer than they want to get married,” Abele said.
U.S. District Judge Barbara Crabb issued the ruling late today, saying the law was unconstitutional. Van Hollen vowed to appeal the ruling.
But the judge also asked the couples who sued to describe exactly what they wanted her to block in the law, then gave Van Hollen’s office a chance to respond. She said that after both sides respond, a process that could take weeks, she would decide whether to put her underlying decision on hold while it is appealed.
Gay rights activists have won 15 consecutive lower court cases since a landmark Supreme Court ruling last summer, with Wisconsin being the latest. Many of those rulings are being appealed.
The ACLU filed a lawsuit in February on behalf of four gay couples, then later expanded to eight, challenging Wisconsin’s constitutional ban on gay marriage.
The lawsuit alleged that Wisconsin’s ban violates the plaintiffs’ constitutional rights to equal protection and due process, asserting the prohibition deprives gay couples of the legal protections that married couples enjoy simply because of their gender.
State marriage bans have been falling around the country since the U.S. Supreme Court last year struck down part of the federal Defense of Marriage Act.
“This case is not about whether marriages between same-sex couples are consistent or inconsistent with the teachings of a particular religion, whether such marriages are moral or immoral or whether they are something that should be encouraged or discouraged,” Crabb wrote in the Wisconsin ruling. “It is not even about whether the plaintiffs in this case are as capable as opposite-sex couples of maintaining a committed and loving relationship or raising a family together.
“Quite simply, this case is about liberty and equality, the two cornerstones of the rights protected by the United States Constitution. “
In May, Milwaukee County Clerk Joe Czarnezki and Dane County Clerk Scott McDonell said they had trained additional staff to issue marriage licenses and worked with the chief judge to have judges on hand to perform ceremonies. They also planned to waive a normal waiting period so couples could wed immediately.
Voters amended the Wisconsin Constitution in 2006, to outlaw gay marriage or anything substantially similar. The state has offered a domestic partner registry that affords gay couples a host of legal rights since 2009, but its future is in doubt; the conservative-leaning Wisconsin Supreme Court is currently weighing whether it violates the constitution.
Republican Gov. Scott Walker, a potential 2016 Republican candidate for president, has a long history of opposing gay marriage and Wisconsin’s 2009 domestic registry law. But in recent months he’s avoided talking directly about the state’s ban, which he supported, saying it’s an issue that needs to be decided by the courts and state voters who can amend the constitution.
“It is correct for the Attorney General, on this or any other issue, to defend the constitution of the state of Wisconsin, especially in a case where the people voted to amend it,” said Walker’s spokeswoman Laurel Patrick.
Walker’s likely Democratic challenger in the governor’s race, Mary Burke, supports legalizing gay marriage.