In June, Wisconsin District Judge Barbara struck down the Badger State’s ban on same-sex marriage, but did not immediately stay the order. Right away, clerks began issuing licenses:
St. Croix County deputy clerk Cheryl Harmon said a county attorney told her office in Hudson not to issue licenses until after Crabb’s June 16 deadline for the ACLU to submit its proposed order. La Crosse County Clerk Ginny Dankmeyer said her county’s attorney initially gave the same advice but she issued a license later in the day, after Crabb refused Republican Attorney General J.B. Van Hollen’s request for an emergency order halting the marriages.
But how long the couples’ window stays open is anyone’s guess.
Van Hollen also appealed Crabb’s decision to the 7th Circuit Court of Appeals and asked it to stop the ceremonies.
“There is absolutely no reason to allow Wisconsin’s county clerks to decide for themselves, on a county-by-county basis, who may and may not lawfully get married in this state,” Van Hollen said in a statement.
She did issue a stay a week later, after briefing (it’s unclear what could have caused her to change her mind). Why could the judge not grant the stay, immediately? Why would *any* district court fail to grant the stay? Judge Crabb, I think, answers the question:
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. 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. However, a federal district court is required to follow the guidance provided by the Supreme Court. Because I see no way to distinguish this case from Herbert, I conclude that I must stay any injunctive relief pending appeal.
During that interim period, there were 500 marriages performed:
During the eight days between Crabb’s initial ruling on same-sex marriage and her entering a stay, more than 500 same-sex couples got married in Wisconsin. The status of those relationships is in legal limbo, and the ACLU has said it will sue to have those marriages recognized by the state.
Wisconsin Attorney General J.B. Van Hollen filed his appeal with the 7th Circuit earlier than required, so that it would be heard at the same time as the Indiana appeal:
The 7th Circuit is already hearing an appeal of a decision striking down Indiana’s ban on same-sex marriage. The appeals court last week agreed to put that case on a fast track.
“In light of the Seventh Circuit’s recent decision to expedite briefing in the Indiana case, we filed Wisconsin’s notice of appeal earlier than required by the rules,” Van Hollen said in a statement. “The goal of our timing is simple: to ensure that Wisconsin is placed on equal footing with Indiana, and that our constitution and laws are given timely consideration by the appellate judges.”
The 7th Circuit will hear both cases on August 13.
On a related front, the 10th Circuit declined to issue a stay in the Utah litigation, as Utah appeals the case to the Supreme Court. In other words, it will be up to the Supreme Court to issue a stay. The 10th Circuit’s temporary stay dissolves on Monday, July 21, 2014. This creates another urgent run to the Supreme Court–the exact same thing that happened this year. If the Court takes no action right away, the district court’s order kicks in, and same-sex marriages can continue to be recognized in Utah (Updated to reflect that this decision only impacts recognition of the marriages).
Judge Kelly dissented from that order, citing a departure from the “rule of law”:
Though the briefing has been completed, the only new federal development in this case is that a divided panel issued an opinion in Kitchen v. Herbert, No. 13-4178, 2014 WL 2868044 (10th Cir. June 25, 2014), and stayed its ruling. Whatever one’s view of the merits, the district court’s preliminary injunction in this case (as both the district court and this court apparently recognized) should be stayed to allow for an orderly resolution of this controversy and one based upon the rule of law. Denying a stay pending appeal in this case complements the chaos begun by the district court in Kitchen when it faulted the State for not anticipating its ruling and seeking a preemptive stay. See Plaintiffs- Appellees’ Opposition to State Defendants-Appellants’ Emergency Motions for Stay Pending Appeal and Temporary Stay Pending Resolution of Motion to Stay Ex. B at 6, Kitchen, No. 13-4178, 2014 WL 2868044. Ultimately, the Supreme Court granted a stay, but not before the State was compelled to issue marriage licenses to hundreds of same-gender couples from December 23, 2013 to January 6, 2014. See Herbert v. Kitchen, 134 S. Ct. 893 (2014).
Judge Kelly finds that allowing the district court’s opinion, which disrupted the ex ante status quo, to stand “simply cannot be the law.”
Insofar as retroactivity, the Utah provisions barring same-gender marriage and its recognition predate the district court’s stayed injunction in Kitchen. The rule contended for by the Plaintiffs—that a federal district court may change the law regardless of appellate review and the State is stuck with the result in perpetuity—simply cannot be the law. It would not only create chaos, but also undermine due process and fairness.
Further, the likelihood of irreparable harm is great:
The State will be irreparably harmed without a stay. In denying a stay pending appeal, this court is running roughshod over state laws which are currently in force. It is disingenuous to contend that the State will suffer no harm if the matter is not stayed; undoing what is about to be done will be labyrinthine and has the very real possibility to moot important issues that deserve serious consideration.
This case should come to a close through “the normal legal process”:
Moreover, granting a stay would not harm Plaintiffs because a stay would not ultimately decide or dispose of their claims. Though the Plaintiffs have important interests at stake, those interests may still be vindicated while appellate review occurs, and Plaintiffs are free to live their lives as they will. A stay would simply maintain the status quo until this case—and the broader issue to ultimately be resolved in Kitchen—comes to a resolution via the normal legal process, including that currently unfolding in the Utah courts.
Declining a stay here may well moot the novel issues involved, as well as those pending in the state courts. The State and its citizens, and respect for the law, are better served by obtaining complete, final judicial resolution of these issues.
And in Colorado, Attorney General John Suthers has been under fire for defending the law:
“We all know how this is going to end,” said state Sen. Pat Steadman, a Denver Democrat. “What’s left to argue about?” …
Suthers, a Republican, is declining interviews, but those who know him — including some who support same-sex marriage — say recent criticism misses the point. Suthers is a politician, they say, whose law-and-order background makes him take his formal legal role of vigorously defending Colorado’s laws seriously.
Suthers is standing firm:
Suthers has been outspoken, even penning an op-ed in The Washington Post in February that chided some of his colleagues for stepping out of line.
“One must be cynical,” Suthers wrote, “when an attorney general refuses to defend a controversial law as ‘clearly unconstitutional’ when there is no binding precedent and it is apparent to most knowledgeable people that the U.S. Supreme Court is likely to decide the case on a 5-4 vote.”