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No. ______
IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

Virginia Wolf, et al.

Plaintiffs-Appellees,
v.
Scott Walker, et al.
Defendants-Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT,
WESTERN DISTRICT OF WISCONSIN, CASE NO. 14-CV-64,
THE HONORABLE BARBARA B. CRABB, PRESIDING
STATE DEFENDANTS-APPELLANTS
EMERGENCY MOTION FOR TEMPORARY IMMEDIATE STAY
FROM THE RELIEF GRANTED BY THE JUNE 6, 2014, OPINION
AND ORDER OF THE DISTRICT COURT
Defendants-Appellants Scott Walker, J.B. Van Hollen, and Oskar
Anderson (collectively, State Defendants), by their undersigned
counsel, hereby move this Court for an order on an emergency basis to
immediately stay that portion of the district courts June 6, 2014,
Opinion and Order effectively denying State Defendants motion to
immediately stay any relief granted by the district court. (Dist. Ct.

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Dkt. #118; Dist. Ct. Dkt. #114, 115, 116.) An emergency stay order
from this Court is necessary to preserve the status quo and to avoid
widespread public confusion regarding the relief granted by the district
court.
INTRODUCTION
Late in the afternoon on Friday, June 6, 2014, the Western District
of Wisconsin, Hon. Barbara B. Crabb, presiding, entered an Opinion
and Order declaring that provisions of the Wisconsin Constitution and
Wisconsin Statutes restricting the legal status of marriage to oppositesex couples violate the Fourteenth Amendment to the United States
Constitution. (Dist. Ct. Dkt. #118.) The district court ordered further
briefing on the scope of a proposed injunction, but the declaratory relief
went into effect immediately. (Id.) The district court took no action on
State Defendants previously filed contingent motion to immediately
stay any relief granted by the district court pending appeal. (Dist. Ct.
Dkt. #114, 115, 116.) The lack of a ruling on the contingent motion to
stay and the subsequent actions of two county clerk defendants in
immediately issuing marriage licenses to same-sex couples has caused
precisely the type of confusion and uncertainty that the State
Defendants contingent motion sought to avoid.

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Approximately an hour after the district court entered its Opinion

and Order, county clerk defendants Czarnezki (Milwaukee) and
McDonell (Dane) began issuing marriage licenses to same-sex couples.1
(See Samuelson Declaration (Decl.) at 6.) Both Dane and Milwaukee
Counties waived the standard five-day waiting period for issuing
marriage licenses. (Id., at 7.) Between Friday evening (6/6/14) and
Saturday afternoon (6/7/14), 283 same-sex couples obtained marriage
licenses in Dane and Milwaukee counties. (Id., at 8.) Other county
clerks,

however,

have

stated

that

they

would

await

further

clarification, creating a situation where some Wisconsin same-sex

couples may marry while others may not. (Id., at 9.)
Within hours after the district court entered its Opinion and Order,
State Defendants filed their emergency motion for temporary stay.
(Dist. Ct. Dkt. #119; Decl., at 4.) As of the present filing, the district
court has neither ruled upon the emergency motion to stay nor stayed
the relief entered in its Opinion and Order as previously requested in
State Defendants contingent motion to stay. (Decl., at 5.)

1The

timing of the district courts decision at approximately 3:22 p.m. CDT,

together with the County Clerks decision to issue licenses starting at 5:00
p.m. CDT, effectively prevented State Defendants from obtaining relief from
this Court over the weekend.

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The district courts Opinion and Order has thus created a legal
environment in which Wisconsins county clerks are deciding on a
county-by-county basis whether to issue marriage licenses to same-sex
couples immediately or wait for the district court to enter injunctive
relief or rule on State Defendants motions to stay.
State Defendants therefore request, under Federal Rule of Appellate
Procedure 8 and Circuit Rules 8 and 27, that this Court, on an
emergency basis, immediately stay the relief granted by the district
courts June 6, 2014, Opinion and Order to maintain the status quo.
BACKGROUND
Following expedited summary judgment briefing, the district court
declared unconstitutional Wis. Const. art. XIII, 13 (the Marriage
Amendment) and all provisions of the Wisconsin marriage laws (Wis.
Stat. ch. 765) referring to marriage as a relationship between a
husband and wife as applied to same-sex marriage.

(Dist. Ct. Dkt.

#118.)
The U.S. Supreme Court, and more recently, the Ninth Circuit and
Sixth Circuit, have issued stays to maintain the status quo after district
courts

have

found

state

laws

banning

same-sex

marriage

unconstitutional. See Herbert v. Kitchen, 134 S. Ct. 893 (Jan. 6, 2014);

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Latta v. Otter, No. 14-35420, at 5 (9th Cir. May 20, 2014) (Herbert
provides a clear messagethe Court (without noted dissent) decided
that district court injunctions against the application of laws forbidding
same-sex unions should be stayed at the request of state authorities
pending court of appeals review); Tanco v. Haslam, No. 14-5297, at 1-2
(6th Cir. Apr. 25, 2014) (a stay of the district courts order pending
consideration of this matter by a merits panel of this Court is
warranted); DeBoer v. Snyder, No. 14-1341 (6th Cir. Mar. 25, 2014)
([t]here is no apparent basis to distinguish this case or to balance the
equities any differently than the Supreme Court did in [Herbert]).
Last week, the Circuit Court of Appeals for the Tenth Circuit postponed
until at least June 12, 2014, the District of Utahs order requiring the
recognition of marriages conducted after the district courts Kitchen
decision (Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013)) but
before the Supreme Court granted its stay. See Evans v. State of Utah,
14-4060 (10th Cir. June 5, 2014).
Given the import of the district courts decision and order to the
State of Wisconsin, particularly amidst a vigorous and unsettled
national debate on the issue, a stay should be ordered immediately.
Further, a stay is necessary in this case to avoid confusion and to
maintain the status quo while the Seventh Circuit decides how
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Wisconsin, and other states, may define the civil institution of

marriage.
STATEMENT OF FACTS
Plaintiffs are eight same-sex couples who claim that the limitation
of the legal status of marriage under Wisconsin state law to oppositesex couples violates the due process and equal protection clauses of the
Fourteenth Amendment to the United States Constitution. (Dist. Ct.
Dkt. #26.)
Plaintiffs challenged the Marriage Amendment as unconstitutional.
(Id., 1.) The Marriage Amendment states:
Only a marriage between one man and one woman shall be valid or
recognized as a marriage in this state. A legal status identical or
substantially similar to that of marriage for unmarried individuals
shall not be valid or recognized in this state.

Wis. Const. art. XIII, 13.

Plaintiffs further challenged as unconstitutional any and all
provisions of Wisconsins marriage statutes (Wis. Stat. ch. 765) that
refer to marriage as a relationship between a husband and wife, if and
to the extent that such provisions constitute a statutory ban on
marriage for same sex-couples. (Id.)
After Plaintiffs summary judgment motion was fully briefed, but
before the district court ruled, State Defendants filed a Contingent

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Motion to Stay, asking the district court to immediately stay any relief
in the case at the time such relief is ordered in order to preserve the
status quo for when an appeal is filed. (Dist. Ct. Dkt. #114, 115, 116.)
Among other things, State Defendants discussed the Supreme Courts
stay in Herbert, the Ninth Circuits stay in Latta, and the Sixth
Circuits stays in Tanco and DeBoer.

(Id.)

State Defendants also

discussed Fed. R. Civ. P. 62(c) and facts justifying their stay request.
(Id.)
Late in the afternoon on June 6, 2014, the district court granted
Plaintiffs motion for summary judgment. (Dist. Ct. Dkt. #118.) The
district court issued a declaration that the challenged provisions of
Wisconsin law are unconstitutional, but expressly refrained from
issuing any injunctive relief, and issued a schedule for further
proceedings on any such injunctive relief. (Id.) The district court also
held in abeyance State Defendants Contingent Motion to Stay, pending
the outcome of the scheduled proceedings regarding injunctive relief.
(Id.) Within hours after the issuance of the district courts Opinion and
Order, the county clerks of two Wisconsin counties, Dane and
Milwaukee, began issuing marriage licenses to same-sex couples, and
over the weekend of June 6-8, 2014, approximately 283 same-sex

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couples obtained marriage licenses, many of whom married. (See Decl.,

6-8.)
On June 8, 2014, the Rock County clerk stated that she will begin
issuing marriage licenses to same-sex couples on June 9, 2014 when
their office opens at 8:00 a.m.

(Id., at 10.)

Other county clerks,

however, have stated that they would await further clarification. (Id.,
at 9.) Thus, at present, some Wisconsin same-sex couples may marry
while others may not.
Within hours after the issuance of the district courts Opinion and
Order, State Defendants filed with the district court an emergency
motion for temporary stay asking the court to temporarily stay the
June 6, 2014, Opinion and Order in order to preserve the status quo on
an interim basis until entry of final relief and a decision on the State
Defendants contingent motion to stay. (Dist. Ct. Dkt. #119.) As of this
filing, although the Dane and Milwaukee clerks offices have held
extraordinary evening and weekend hours, the district court has not
ruled upon2 State Defendants contingent motion to stay or emergency
motion for temporary stay. (See Decl., 5.) State Defendants have,
therefore, complied with Fed. R. App. P. 8.
2At

7:40 a.m. on Monday, June 9, 2014, the district court entered a minute
order scheduling a telephonic motion hearing for June 9, 2014 at 1:00 p.m. on
State Defendants emergency motion to stay. (Decl., at 11.)

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ARGUMENT
The purpose of a stay is to maintain the status quo pending appeal,
thereby preserving the ability of the reviewing court to offer a remedy
and holding at bay the reliance interests in the judgment that
otherwise militate against reversal. In re CGI Indus., Inc., 27 F.3d
296, 299 (7th Cir. 1994). If a stay is not granted and action is taken in
reliance on the judgment, the positions of the interested parties have
changed, and even if it may yet be possible to undo the transaction, the
court is faced with the unwelcome prospect of unscrambl[ing] an egg.
Id. (emphasis in original; citation omitted).
Courts consider the moving partys likelihood of success on the
merits, the irreparable harm that will result to each side if the stay is
either granted or denied in error, and whether the public interest
favors one side or the other. See In re A & F Enters., Inc. II, 742 F.3d
763, 766 (7th Cir. 2014) (citations omitted).
The Supreme Court has already concluded in favor of a stay pending
appeal in same-sex marriage litigation. See Herbert, 134 S. Ct. 893.
I. State Defendants Are Reasonably Likely To Succeed
on Appeal.
The Supreme Courts recent stay of an injunction against
enforcement of Utahs marriage laws suggests State Defendants are

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reasonably likely to succeed on appeal because the standards for

granting a stay in the Supreme Court are substantially similar.
Hollingsworth v. Perry, 558 U.S. 183, 189 (2010) (per curiam) (noting
that a stay is appropriate if there is a fair prospect that a majority of
the Court will vote to reverse the judgment below.). The Supreme
Court or a Circuit Justice rarely grant[] a stay application, but they
will do so if they predict that a majority of the Court would . . . set
the [district court] order aside. San Diegans for Mt. Soledad Natl War
Meml v. Paulson, 548 U.S. 1301, 130203 (2006) (Kennedy, J., in
chambers).
On January 6, 2014, after Justice Sotomayor referred the stay
application to all the Justices, the Supreme Court stayed the Herbert
district courts injunction, thereby signaling the Supreme Courts belief
that there is at least a fair prospect that it will reverse the District of
Utahs judgment. 134 S. Ct. 893. The Sixth Circuit and Ninth Circuit
later followed the Supreme Courts lead. See Latta v. Otter, No. 1435420 (9th Cir. May 20, 2014); Tanco v. Haslam, No. 14-5297 (6th Cir.
Apr. 25, 2014); DeBoer v. Snyder, No. 14-1341 (6th Cir. Mar. 25, 2014).
As discussed more fully in their memorandum in opposition to
Plaintiffs motion for summary judgment (Dist. Ct. Dkt. #102) and in
amici curiaes brief (Dist. Ct. Dkt. #109), State Defendants are
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reasonably likely to succeed on appeal because: (i) Plaintiffs claims do

not implicate a fundamental right; (ii) Wisconsins marriage laws do
not discriminate based on gender or sexual orientation; (iii) rational
bases exist to support Wisconsins marriage laws; and (iv) Plaintiffs
claims are foreclosed by Baker v. Nelson, 409 U.S. 810 (1972).
II. Irreparable Harm Will Result Absent a Stay.
Irreparable harm will result if the district courts decision is not
stayed pending appeal. [A]ny time a State is enjoined by a court from
effectuating statutes enacted by representatives of its people, it suffers
a form of irreparable injury. Maryland v. King, 133 S. Ct. 1, 3 (2012)
(Roberts, C.J., in chambers) (quoting New Motor Vehicle Bd. v. Orrin
W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, C.J., in chambers));
Aid for Women v. Foulston, 441 F.3d 1101, 1119 (10th Cir. 2006)
(same); Coalition for Econ. Equality v. Wilson, 122 F.3d 718, 719 (9th
Cir. 1997) (same)). Here, the district court has declared a provision of
the Wisconsin Constitution unconstitutional and such a declaration
causes the same harm or a greater harm than if a statute were declared
unconstitutional.
The Supreme Court recently affirmed the states unique and historic
interests in regulating civil marriage when it stated that [t]he

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recognition of civil marriages is central to state domestic relations law

applicable to its residents and citizens. U.S. v. Windsor, 133 S. Ct.
2675, 2691 (2013). Windsor affirmed that [e]ach state as a sovereign
has a rightful and legitimate concern in the marital status of persons
domiciled within its borders and made clear that [t]he definition of
marriage is the foundation of the States broader authority to regulate
the subject of domestic relations with respect to the [p]rotection of
offspring,

property

interests,

and

the

enforcement

of

marital

responsibilities. Id. at 2675 (citations omitted). Forcing Wisconsin to

violate its rightful and legitimate concerns in the marital status of
persons constitutes irreparable harm to the States sovereignty. In
addition, the State will face significant administrative burdens
associated with issuing marriage licenses under a cloud of uncertainty
during appeal.
The Utah same-sex marriage litigation exemplifies the harms that
may occur absent a stay. There, both the district court and the Tenth
Circuit Court of Appeals declined to issue a stay.

See Kitchen v.

Herbert, No. 2:13-cv-00217-RJS, 2013 WL 6834634 (D. Utah Dec. 23,

2013) (order on motion to stay); Kitchen v. Herbert, 12-4178 (10th Cir.
Dec. 24, 2013) (order denying emergency motion for stay and temporary
motion for stay).

Several days later, however, the United States

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Supreme Court granted a stay and Utahs traditional marriage laws

were reinstituted. See Herbert, 134 S. Ct. 893.
In the 17 days between the district courts ruling and the Supreme
Courts stay, roughly 1,300 same-sex couples obtained marriage
licenses and approximately 1,000 were married. See Evans v. Utah,
No. 2:14CV55DAK, 2014 WL 2048343, at *1 (May 19, 2014).

Utah

refused to recognize those 1,000 marriages and additional litigation

ensued to determine the legal status of those marriages.

Id.

Approximately 300 of the couples who obtained licenses but did not
marry before the Supreme Courts stay order in Herbert were unable to
marry despite having legally obtained Utah marriage licenses.

The

district court eventually enjoined Utah from applying Utahs marriage

bans retroactively.

Id. at 21.

The Tenth Circuit, however, has

temporarily stayed the district courts order in Evans. See Evans v.

State of Utah, 14-4060 (10th Cir. June 5, 2014).
Here, there is a very real risk of harm where both Milwaukee
County clerk Czarnezki and Dane County clerk McDonell have begun
issuing marriage licenses to same-sex couples and will continue to do so
in the future. The failures of the district courts in Utah (and to a lesser
extent in Michigan) to immediately enter stays to preserve the status
quo pending appeal has led to chaos, confusion, uncertainty, and
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ultimately, further litigation. State Defendants request this Court stay

any injunctive relief to avoid similar results and their associated
administrative burdens. See I.N.S. v. Legalization Assistance Project of
Los Angeles Cnty. Fedn of Labor, 510 U.S. 1301, 1305-06 (1993)
(OConnor, J., in chambers) (citing the considerable administrative
burden on the government as a reason to grant a stay).
Since State Defendants are reasonably likely to succeed on appeal,
refusal to stay the district courts injunction pending appeal could
result in injuries similar to those sustained in Utah. Moreover, state
officials and administrative agencies, including Registrar Anderson,
would have to revise regulations and forms to accommodate the
injunctionbut may have to re-revise them if this Court, or the
Supreme Court ultimately upholds Wisconsins traditional marriage
laws.
The States interests in enforcing its own laws and in ensuring
administrative clarity, as well as individual interests in certainty
regarding marriage, demonstrate the irreparable injury that is likely to
occur in the absence of a stay.

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III.

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Public interests weigh in favor of a stay.

Wisconsin citizens have an interest in deciding, through the

democratic process, public policy issues of societal importance including
the definition of civil marriage. Removing the decision from the people
harms the public interest.
The public also has an interest in certainty and in avoiding
unnecessary expenditures. As discussed above, should a stay not be
granted, marriage licenses would be issued under a cloud of
uncertainty and the State would face heavy administrative burdens. A
stay would, on the other hand, serve the public interest by preserving
the status quo and allowing the appeals process to proceed on an issue
of substantial state and national importance while preventing
irreparable injury to the state and its citizens in the interim.
In reversing the Middle District of Tennessees denial of a motion to
stay, the Sixth Circuit found that the public interest requires granting
a stay. See Tanco, No. 14-5297 at 2. The Sixth Circuit quoted Henry
v. Himes, No. 1:14-CV-129, 2014 WL 1512541 at *1 (S.D. Ohio Apr. 16,
2014):
[R]ecognition of same-sex marriages is a hotly contested issue
in the contemporary legal landscape, and, if [the states] appeal
is ultimately successful, the absence of a stay as to [the district
courts] ruling of facial unconstitutionality is likely to lead to
confusion, potential inequity, and high costs.
These
considerations lead the Court to conclude that the public

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interest would best be served by granting of a stay. Premature

celebration and confusion do not serve anyones best interests.
The federal appeals courts need to rule, as does the United
States Supreme Court.

Tanco, No. 14-5297 at 2. These same public interest concerns are true
here.
CONCLUSION
For the reasons discussed, State Defendants respectfully request
that this Court consider the present motion on an emergency basis,
enter an order immediately staying that portion of the district courts
June 6, 2014, Opinion and Order that effectively denied State
Defendants motion to immediately stay any relief granted by the
district court, and for all other and further relief that justice requires.
Dated this 9th day of June, 2014.
Respectfully submitted,
J.B. VAN HOLLEN
Attorney General
s/Timothy C. Samuelson
TIMOTHY C. SAMUELSON
Assistant Attorney General
State Bar #1089968
THOMAS C. BELLAVIA
Assistant Attorney General
State Bar #1030182
CLAYTON P. KAWSKI
Assistant Attorney General
State Bar #1066228
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Attorneys for Defendants,

Scott Walker, J.B. Van Hollen,
and Oskar Anderson
Wisconsin Department of Justice
Post Office Box 7857
Madison, Wisconsin 53707-7857
(608) 266-3542 (Samuelson)
(608) 266-8690 (Bellavia)
(608) 266-7477 (Kawski)
(608) 267-2223 (fax)
samuelsontc@doj.state.wi.us
bellaviatc@doj.state.wi.us
kawskicp@doj.state.wi.us

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No. ______
IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

Virginia Wolf, et al.

Plaintiffs-Appellees,
v.
Scott Walker, et al.
Defendants-Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT, WESTERN
DISTRICT OF WISCONSIN, CASE NO. 14-CV-64,
THE HONORABLE BARBARA B. CRABB, PRESIDING
DECLARATION OF TIMOTHY C. SAMUELSON
IN SUPPORT OF STATE DEFENDANTS-APPELLANTS
EMERGENCY MOTION FOR TEMPORARY IMMEDIATE STAY FROM
THE RELIEF GRANTED BY THE JUNE 6, 2014, OPINION AND ORDER
OF THE DISTRICT COURT

I, Timothy C. Samuelson, pursuant to 28 U.S.C. 1746, hereby declare as

follows:
1.

I am one of Defendants-Appellants Walker, Van Hollen, and

Andersons (the State Defendants-Appellants) attorneys in the above-

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captioned matter.

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I make this Declaration based on my own personal

knowledge and based upon the sources described.

2.

I make this Declaration in support of State Defendants-Appellants

emergency motion for temporary immediate stay from the relief granted by
the June 6, 2014, Opinion and Order of the district court. (Dist. Ct. Dkt.
#118.)
3.

On Friday, June 6, 2014, at approximately 3:22 p.m., I received an

automatic e-mail message from the Western District of Wisconsins CM/ECF

system notifying me of the district courts electronic filing of the Opinion and
Order declaring that provisions of the Wisconsin Constitution and Wisconsin
Statutes restricting the legal status of marriage to opposite-sex couples
violate the substantive due process and equal protection rights of same-sex
couples under the Fourteenth Amendment to the United States Constitution.
(Dist. Ct. Dkt. #118.) In the Opinion and Order, the district court held in
abeyance its ruling on State Defendants contingent motion to stay, field May
23, 2014 (Dist. Ct. Dkt. #114, 115, 116) that sought an immediate stay of any
order granting Plaintiffs motion for summary judgment, in whole or in part,
to preserve the status quo for appeal.
4.

On Friday, Friday, June 6, 2014, at approximately 6:09 p.m., I filed

State Defendants emergency motion for temporary stay.

#119.)

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(Dist. Ct. Dkt.

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5.

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At the time of the present filing, the district court has not ruled upon

State Defendants emergency motion for temporary stay (Dist. Ct. Dkt. #119)
or contingent motion to stay (Dist. Ct. Dkt. #114, 115, 116).
6.

Attached hereto as Exhibit A is a true and correct copy of an article

titled, Federal judge overturns Wisconsins gay marriage ban, written by

Jason Stein, Patrick Marley & Dana Ferguson, published by the Milwaukee
Journal Sentinel on June 7, 2014. The article is available electronically at
http://www.jsonline.com/news/statepolitics/federal-judge-overturns-wisconsinsgay-marriage-ban-b99286138z1-262161851.html, last checked June 7, 2014.

7.

Attached hereto as Exhibit B is a true and correct copy of an

Associated Press article titled Gay marriages begin in Wisconsin after

ruling, published by the Washington Post on June 6, 2014. The article is
available

electronically

at

http://www.washingtonpost.com/national/judge-

strikes-down-wisconsin-gay-marriage-ban/2014/06/06/1ab5266e-edbe-11e3-8a8ae17c08f80871_story.html, last checked June 7, 2014.

8.

Attached hereto as Exhibit C is a true and correct copy of an article

titled, Tears flow as 283 couples wed in Milwaukee, Madison, written by

Karen Herzog, published by the Milwaukee Journal Sentinel on June 7, 2014.
The

article

is

available

electronically

http://www.jsonline.com/news/wisconsin/37535973-mjs_gaymarriage08p1jpgb99286470z1-262240081.html, last checked June 8, 2014.

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9.

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Attached hereto as Exhibit D is a true and correct copy of an article

titled, Brown County awaits guidance from state in wake of same-sex

marriage ruling, written by Nathan Phelps, published by the Green Bay
Press Gazette on June 7, 2014.

The article is available electronically at

http://www.greenbaypressgazette.com/article/20140607/GPG0101/140607004/Br
own-County-awaits-guidance-from-state-wake-same-sex-marriage-ruling-,

last

checked June 8, 2014.

10.

Attached hereto as Exhibit E is a true and correct copy of an article

titled, Rock county to start issuing same-sex marriage licenses, written by

Meg Jones, published by the Milwaukee Journal Sentinel, on June 8, 2014.
The article is available electronically at http://m.jsonline.com/262320081.htm,
last checked June 9, 2014.
11.

On Monday, June 9, 2014, at approximately 7:40 a.m., I received an

automatic e-mail message from the Western District of Wisconsins CM/ECF

system notifying me of the district courts electronic filing of a minute order
stating as follows:
Set Telephone Motion Hearing as to [119] Emergency Motion to Stay
Dkt. 118. Telephone Motion Hearing set for 6/9/2014 at 01:00 PM
before Judge Barbara B. Crabb. Counsel for Defendants responsible
for setting up the call to chambers at (608) 264-5447. (voc)

I declare under penalty of perjury that the foregoing is true and correct.

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Dated this 9th day of June 2014.

s/Timothy C. Samuelson
TIMOTHY C. SAMUELSON

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Federal judge overturns Wisconsin's gay

marriage ban
By Jason Stein, Patrick Marley and Dana Ferguson of the Journal Sentinel
June 7, 2014
Madison A federal judge in Madison on Friday overturned Wisconsin's gay marriage ban, striking
down an amendment to the state constitution approved overwhelmingly by voters in 2006 and prompting
an emergency action by the state to halt the scores of weddings that began in the state's two largest
cities.
In the 88-page decision, U.S. District Judge Barbara Crabb ruled that the prohibition on same-sex vows
in the state violated the rights of gay and lesbian couples to equal protection under the federal
constitution and fair treatment under the law.
She did not stay her ruling but also did not immediately issue an order blocking the enforcement of the
ban, sparking a heated and hasty debate on whether the ruling meant that couples could immediately
marry in the courthouses of Wisconsin.
Instead, Crabb asked the gay couples who had sued over the ban to say by June 16 exactly what they
wanted done to enforce her ruling, with a further wait of one to two weeks for both sides in the lawsuit
to file responses. Crabb, who was appointed by President Jimmy Carter, said she would then address
whether to stay her decision while the matter is on appeal.
"Quite simply, this case is about liberty and equality, the two cornerstones of the rights protected by the
United States Constitution," Crabb wrote in her decision.
Attorney General J.B. Van Hollen, a Republican, said that "current law remains in force" in Wisconsin
and took immediate action to try to halt the surge of gay couples seeking to wed, filing an emergency
request for a stay from Crabb. Van Hollen could also file a similar motion before the 7th Circuit Court
of Appeals in Chicago.
"The United States Supreme Court, after a referral from Justice (Sonia) Sotomayor, stayed a lower
court's decision striking down Utah's ban on same-sex marriage. There is no reason to believe the
Supreme Court would treat Wisconsin's ban any differently," Van Hollen said in a statement.

Licenses issued quickly

Dane County Clerk Scott McDonell, a Democrat, began issuing marriage licenses at 5 p.m. Friday as
gay couples were married there throughout the night. He said state Department of Justice officials
advised him not to issue the licenses but McDonell moved forward despite that.
"They don't get to tell me that," he said of DOJ. "A judge gets to....If someone comes to me, how could I
say no to them?"

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Milwaukee County Clerk Joe Czarnezki, also a Democrat, issued marriage licenses through Friday night
and planned to do so again on Saturday.
"Personally, I'm pleased she struck the ban down," he said of Crabb. "It makes us proud to be in
Wisconsin and a state that's standing up for marriage equality."
Milwaukee County Executive Chris Abele said he would personally pay for any overtime costs for
keeping the courthouse open. Cheers erupted at PrideFest in Milwaukee as Abele announced the
extended hours to the crowds.
For PrideFest attendee Perry Kaluzny, 24, of Milwaukee, the overturning of Wisconsin's gay marriage
ban was liberating.
"This is a wonderful thing, and hopefully this will mean marriage one day for me," he said.
Within hours of Crabb's ruling, weddings were taking place in the Milwaukee courthouse and on the
street outside the Dane County clerk's office as crowds cheered and passing cars honked their horns.

Legal questions
Carl Tobias, a law professor at the University of Richmond who has been tracking similar cases
nationally, said that almost all of the decisions striking down marriage bans in other states have been
stayed by the issuing judge or an appellate court.
"So my guess is the same thing could happen in this case. The question is the timing of this," Tobias
said.
Tobias praised Crabb's overall decision but said that it didn't make clear whether gay marriages could
take place immediately, leaving both sides with "plenty of arguments they can make."
The likelihood of a stay by a higher court cast doubt on the legal status of the marriages on Friday
evening, he said.
"What's clear is they're in limbo (for now). What's not clear is what the courts will do ultimately,"
Tobias said. "It's a mess."
Tamara Packard, a Madison attorney who supports the right to marry but was not involved in the case,
said she read the decision to mean same-sex couples could immediately marry.
"I think the clerk should comply with the declaration of unconstitutionality we have a constitutional
right," Packard said. "I think (Crabb has) declared what the law is and the clerks are required to follow
the law. Whether there's an order saying you must issue, I don't think that's very relevant."
Larry Dupuis, legaldirector of the ACLU of Wisconsin and attorney for the four same-sex couples who
are the plaintiffs in the case, said Crabb's decision was different from any of the others around the
country. That's because she struck down Wisconsin's ban against same-sex marriage as unconstitutional
but she did not immediately issue an order instructing county and state officials on what to do about that.
That left county clerks to decide that question for themselves.

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On Monday, the ACLU plans to present Crabb with a proposed order that would require state officials to
stop enforcing the marriage ban, Dupuis said. If she signs it, she also would have the option of granting
a stay, meaning same-sex marriages would end, at least temporarily, until a higher court reviews her
decision.
In that event, Dupuis said he hopes Van Hollen would not "be so small" as to refuse to recognize samesex couples who have married in the interim.
A similar situation occurred in Utah last winter, when a federal court struck down the marriage ban
there. For 17 days in December and January, about 1,300 same-sex couples exchanged vows. The U.S.
Supreme Court put the order allowing the unions on hold until after the state's appeal was resolved.
A different federal judge ordered the state of Utah to recognize the 1,300 marriages in the meantime.
The state has appealed that decision, as well.
One of the couples involved in Wisconsin's case, Garth Wangemann and Roy Badger, celebrated the
victory Friday night, declaring themselves "speechless" with pride. The couple followed ACLU advice
and did not get married Friday, saying that three more days of waiting wouldn't hurt.
"This way we don't feel like we'll have to rush through," Badger said.
In her decision, Crabb said the state failed to show that the ban is "substantially related" to an important
state goal. She questioned whether the state could even count as important public interests its stated
goals of tradition, procreation and avoiding a "slippery slope" toward polygamy or incest.
She said that many other policies later found unconstitutional, such as segregation, were longstanding
and popular among a majority of a state's voters.
She closed by quoting former Supreme Court Justice Benjamin Cardozo: "Justice is not to be taken by
storm, but must be wooed by slow advances."
Sen. Glenn Grothman (R-Campbellsport), who is running for the U.S. House in the 6th Congressional
District, initially said Friday that he hoped that some county clerks would refuse to issue marriage
licenses to gay couples despite the ruling. But he pulled back from that after a few minutes' reflection,
saying that would be too radical a response.
"It's very sad that something approved by voters and represented as the law in every state for the first
200 years of the republic is all of a sudden declared unconstitutional," Grothman said. "...This will
further the complete lack of respect that the public has for the judiciary."
Former Supreme Court Justice Janine Geske said she believes this is the first time a federal judge has
struck down a Wisconsin constitutional amendment.
"The thing is, we don't have that many new constitutional amendments," said Geske, who spent five
years on the state Supreme Court and is now a professor at the Marquette University Law School.
Marquette University Law School professor Alan R. Madry noted that the U.S. Constitution was the
highest law in the nation and trumped anything in the state's statute or charter.
"It is breathtaking that the federal courts would be moving...so rapidly. That would not have happened

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15 or 20 years ago," Madry wrote in an email. "The constitution is obviously alive and growing."
Tobias, who believes there is a constitutional right for same-sex couples to marry, called Crabb's
decision the "most thorough and probably most careful" treatment of the issue and one that other judges
would look to as they decide similar cases.
A spokeswoman for Gov. Scott Walker, a Republican, did not comment on the substance of the ruling
beyond backing Van Hollen's decision to appeal it.
"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," Walker said.
Walker's Democratic opponent in the governor's race, Mary Burke, was enthusiastic about the decision.
"Every loving couple should have the freedom to marry whomever they choose, and the fact that this
freedom is now available in Wisconsin is something we all can and should be proud of," Burke said in a
statement.

Critics denounce ruling

Julaine Appling, executive director of Wisconsin Family Action, said the issue of same-sex marriage
will ultimately be decided by the U.S. Supreme Court. Appling's group helped lead the effort to put
Wisconsin's ban in place and filed a friend-of-the-court brief defending it in the case before Crabb.
"We are disappointed but not surprised," she said. "I'm mostly disappointed for the people of this state
who spoke loudly and clearly in 2006. What a travesty of justice to have their vote overridden by the
stroke of an appointed federal judge's pen."
She said supporters of gay marriage should have to do what her group did persuade lawmakers to
back a change to the state constitution in two consecutive legislative sessions and then have voters
approve it in a statewide referendum.
"They took the chicken's way out," she said of the plaintiffs. "They don't want a popular vote."
Milwaukee Catholic Archbishop Jerome Listecki called it "disturbing" that a federal judge would
overrule the "manifest will of the people."
"The decision does not change Catholic teaching that marriage is between one man and one woman,"
Listecki said.
The Rev. Jeff Barrow, bishop of the 91,000-member Greater Milwaukee Synod of the Lutheran Church
in America, said he was pleased by the ruling. However, he expressed some skepticism out of concern
that it could be appealed, and added "laws don't change people's minds."
"I'm happy for the gay couples who have been faithful and unable to access all the benefits that families
should be able to access," said Barrow, whose denomination allows same-sex blessings.
Nationwide, same-sex couples have the right to marry in 19 states and the District of Columbia. Judges
in eight now including Wisconsin of the remaining 31 states have issued rulings striking down
same-sex marriage bans, with those rulings stayed as they work their way through appellate courts.

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In Wisconsin, voters in 2006 resoundingly approved the same-sex marriage amendment, 59% to 41%.
Every county in the state except Dane voted for it.
But the most recent Marquette Law School poll, released May 21, found 55% of registered voters
statewide now favor allowing gay marriage, while 37% oppose it and 6% say they do not know.
Last month, Van Hollen acknowledged he would not be surprised to lose the case. He had asked Crabb
to immediately block her own decision if she struck down the ban. Normally, lawyers wait until a judge
rules before asking for a stay.
Daniel Bice, Gina Barton, Bruce Vielmetti, Georgia Pabst, Megan Trimble and Annysa Johnson of the
Journal Sentinel staff in Milwaukee contributed to this report.

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Gay marriages begin in

Wisconsin after ruling
By Associated Press, Published: June 6
MADISON, Wis. Same-sex couples began
getting married in Wisconsin on Friday shortly
after a federal judge struck down the states gay
marriage ban and despite confusion over the
effect of the ruling.
Clerks in Madison and Milwaukee started
marrying same-sex couples shortly after 5 p.m. Friday, a little over an hour after the judge released her
ruling.
It didnt take long for those who have been fighting the law for years to start celebrating and get
married.
Im still up in the clouds! Shari Roll said shortly after completing her ceremony marrying Renee
Currie just a block from the state Capitol.
Clerks in Milwaukee and Madison began issuing marriage licenses even though Republican Attorney
General J.B. Van Hollen said the ruling did not clear the way for weddings to begin. It wasnt
immediately known whether marriages were happening elsewhere in Wisconsin.
Van Hollen quickly sought an emergency order in federal court to stop the weddings. He said confusion
and uncertainty is resulting and the status quo must be preserved.
In the meantime, Jose Fernando Gutierrez and Matthew Schreck were married outside the county clerks
office in Milwaukee, in what was possibly the first gay marriage in the state. About 45 minutes later,
Currie and Roll got married in Madison.
Clerks were keeping their offices open until 9 p.m. in Madison and Milwaukee to issue marriage
licenses.
I have been waiting decades for this day to finally arrive and we wont make loving couples wait longer
than they want to get married, said Milwaukee County Executive Chris Abele.
In her ruling, U.S. District Judge Barbara Crabb declared the gay marriage ban unconstitutional. But she

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also created confusion by asking the couples who sued to describe exactly what they wanted her to block
in the law. She said she would later decide whether to put her underlying decision on hold while it is
appealed.
Opponents of the law didnt want to wait. The marriages started, even as Van Hollen said they
shouldnt, leading to his request for an emergency order. He also vowed to appeal.
The ACLU filed a lawsuit in February challenging Wisconsins constitutional ban on gay marriage. The
lawsuit alleged Wisconsins 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.
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.
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.
One of the plaintiff couples got the news in Milwaukee, where the gay festival PrideFest opened Friday.
Garth Wangemann, 58, and Roy Badger, 56, said they are eager to be married they have their clothes
picked out but OK with waiting a bit longer.
We all wanted the day to come where young people (can) now take it for granted, they can marry the
person they love, Wangemann said.
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. The conservative-leaning Wisconsin Supreme Court is weighing whether it violates the
constitution.
Republican Gov. Scott Walker, a potential 2016 Republican candidate for president, has long opposed
gay marriage. But in recent months hes avoided talking directly about the states ban, which he
supported, saying its an issue that needs to be decided by the courts and voters.
Walkers likely Democratic challenger in the governors race, Mary Burke, supports legalizing gay
marriage.
___
Associated Press writers Todd Richmond and Taylor W. Anderson, in Madison, and M.L. Johnson in
Milwaukee contributed to this report.
Copyright 2014 The Associated Press. All rights reserved. This material may not be published,
broadcast, rewritten or redistributed.

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Same-sex weddings continue in Wisconsin after

judge strikes down ban
Tears flow as 283 couples wed in Milwaukee, Madison
By Karen Herzog of the Journal Sentinel
June 7, 2014
Overcome with the emotion of the day, Todd Halsey burst into tears as his older sister and her partner of
11 years stood on the steps just inside the Milwaukee County Courthouse on Saturday morning, waiting
to obtain a marriage license and exchange vows.
"I look at it as the next civil rights protest, and how you carry yourself is important," Halsey said of the
battle for same-sex couples such as his sister, Jennifer, and her partner, Margaux Shields, to win
marriage equality.
Between Friday evening and Saturday afternoon, 283 same-sex couples in Wisconsin's two largest cities
obtained marriage licenses 146 in Milwaukee and 137 in Madison. Most of the couples got married
on the spot by a judge, court commissioner or minister they brought along. Several supporters who didn't
know any of them showed up and offered to be witnesses, if needed. They also gave the couples ivory
roses and rainbow-colored daisies.
Couples in Milwaukee ranged in age from 23 to their early 80s, said Deputy County Clerk George
Christenson. He estimated that more men than women obtained marriage licenses, and perhaps 10% had
children.
Todd Halsey was worried the day might never come that his sister and her partner could be legally
married like he and his wife, Randee. He was prepared to stand up to any protesters who attempted to
spoil their day.
It turned out he didn't have to.
"We've been waiting for a long time; this is well worth it," said Jennifer Halsey, 39, as she and Shields,
36, stood in the courthouse hallway with dozens of other couples and waited nearly an hour for their
number to be called to fill out the $110 marriage license paperwork and pay an additional $25 for the
seven-day waiting period to be waived.
The couple had a ceremony at the First Unitarian Society of Milwaukee in 2008 and planned to get
married in Chicago in August. But this day was different: They were part of history in the making.
Jennifer Halsey said they decided to marry in Milwaukee on Saturday before anything could happen in
federal court to change U.S. District Judge Barbara Crabb's ruling that the prohibition on same-sex vows
in Wisconsin was unconstitutional.

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Crabb's 88-page decision was different from the others around the country because although she ruled
Wisconsin's ban against same-sex marriage was unconstitutional, she did not issue an order instructing
county and state officials on what to do about it.
That left county clerks and judges to decide for themselves.
An emergency motion by the state attorney general attempted to halt the scores of weddings that began
Friday evening in Milwaukee and Madison. As of late Saturday, Crabb had taken no action on it.
"It was very demoralizing when the constitutional amendment passed, and we realized how many people
in Wisconsin didn't support us," Jennifer Halsey said of the 2006 amendment outlawing same-sex
marriage that Wisconsin voters overwhelmingly passed.
"We thought about leaving the state," she said. "When you see other states around you embracing
marriage equality, it's very hard to have your home state not embrace it."
Milwaukee County Executive Chris Abele, who said he tearfully and proudly served as a witness for 10
of the Milwaukee weddings, personally footed the bill for employee overtime at the courthouse.
"Whatever it is, it's easily worth it," Abele said of the tab. "You're watching people who've been together
for decades, and finally they're getting the same recognition every other loving couple gets. It's
humbling to be part of."
Milwaukee County judges have pretty much seen it all. But on Saturday, about a dozen of them turned
their attention from the usual sad and violent circumstances to a procession of weddings marked by
lingering hugs, complicated tears and what many said were long-overdue cheers.
Judge William Pocan noted the couples had little time to prepare, since Crabb had overturned
Wisconsin's gay marriage ban less than 24 hours earlier.
"On one hand, you could say it was spur of the moment, but when you've been together 20 to 25 years,
how spur of the moment is it?" said Pocan, who is used to dealing with felons. "I got a smile or a tear
from some of them when I said, 'in sickness and in health.' People together that long have probably been
there in sickness already. It was touching."
In Madison on Saturday afternoon, a violinist playing "The Wedding March" strolled from ceremony to
ceremony on the lawn of the City-County Building.
In Milwaukee, several weddings also spilled outside, where couples soaked up the sun and posed beside
the decorative fountain for pictures with family and friends.
Jennifer Larson and Nicole Arnott were at the movie "The Fault in Our Stars" with their three kids on
Friday night when Larson's phone flashed the news of Crabb's ruling.
The Milwaukee couple, who have been together about 10 years, went to Vermont in 2004 for a civil
union ceremony, filed for domestic partnership recognition in Milwaukee two years ago, and got
matching "Always and Forever" tattoos on their necks. Still, as parents and homeowners, they were
excited to make their commitment official in the eyes of the law.
When they got home from the movies, they laid out their wedding clothes a black-and-white print

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dress for Arnott and a dark gray polo shirt and black pants for Larson. They tossed and turned all night,
constantly checking the clock to make sure they didn't oversleep.
They were the first couple to arrive at the Milwaukee County Courthouse at 6:45 a.m. Saturday.
The couple didn't know what to expect. They were relieved not to see an army of poster-waving
protesters or a long line of people camped out overnight after PrideFest at the Summerfest grounds.
"We wanted to get here early. You never know what might happen Monday," Larson said.
Larson and Arnott exchanged vows with tears welling in their eyes, as a court commissioner reminded
them that love and loyalty are the foundation of a family home.
Arnott kissed Larson's wedding ring before placing it on her finger.

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Federal judge strikes down Wisconsin ban on gay ma...: A federal judge overturns Wisconsin's gay marriage ban,
prompting a rush of same-sex couples to county offices to wed. Vanessa Johnston reports.
Written by
Nathan Phelps
Press-Gazette Media

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Friday that Wisconsins ban on same-sex marriage was

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Right now were waiting to see what the state is recommending,

he said Saturday. Well wait to see what (the county clerk) says
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Federal judge strikes down Wisconsin's ban on gay marriage

Brown County not ready to issue licenses to gay couples
Brown County Clerk Sandy Juno said Friday
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records officials on how to process such

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Ultimately were waiting to what the state is

recommending, Streckenbach said. We
want to make sure were following the law
and doing it in an appropriate way.
Wisconsin Attorney General J.B. Van Hollen,
who said he plans to appeal the ruling, said
that the states current ban on same sex
ZOOM

Meghan Connor, left, and Nujemi Champion, both of

Madison, show off their wedding documents after
getting married Saturday in Madison. Dozens of gay
couples got married at courthouses in Milwaukee and
Madison early Saturday, / Andy Manis/AP

marriage remains in place.

Dozens of gay couples got married at
courthouses in Milwaukee and Madison early
Saturday, taking advantage of what may be

a small window in which to get hitched before a ruling overturning

the state's same-sex marriage ban is put on hold.
Milwaukee County Executive Chris Abele said Saturday afternoon
that 146 couples married there before the courthouse closed at 1
p.m.
Milwaukee County Clerk Joe Czarnezki said couples were lined up
outside his courthouse at 6 a.m., three hours before it opened.
Within 30 minutes of opening, about 45 couples had applied for
marriage licenses.
U.S. District Judge Barbara Crabb issued her ruling Friday
afternoon.
Craig Cook and Marshall Draper arrived about 8:30 a.m. Saturday
and found nearly two dozen couples in line ahead of them.
"Had this been legal, we probably would have done this 20 years
ago," Cook said. He said he and Draper would likely have a
reception in a few weeks, but "this was as formal a wedding as I've
ever wanted."
Green Bay Mayor Jim Schmitt said the city will respect the
decisions made at the county level.
We will respect any decision by the county, he said. The country
is changing, and people are watching this issue, and were
interested in the decision made by the county.
Whatever it is, were going to respect and support, he said.
The Associated Press
nphelps@pressgazettemedia.com and follow him on
Twitter@nathanphelpsPG or on Facebook at Nathan Phelps
(Press-Gazette)

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http://www.greenbaypressgazette.com/article/20140607/GPG0101/140607004/

6/8/2014

Brown County awaits guidance from state in wake of same-sex marriage ruling | Press Ga... Page 4 of 4
Case: 14-2266

Document: 2-6

Filed: 06/09/2014

Pages: 4

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http://www.greenbaypressgazette.com/article/20140607/GPG0101/140607004/

6/8/2014

Rock County to start issuing same-sex marriage licenses

Case: 14-2266

Document: 2-7

Page 1 of 3
Filed: 06/09/2014

Pages: 3



Rock County to start issuing same-sex marriage

licenses

 (2)

By Meg Jones of the Journal Sentinel

Updated June 8, 2014

Rock County will become the third in Wisconsin to allow same-sex couples to marry.
Monday morning the Rock County clerk will begin issuing marriage licenses to all
qualified couples after U.S. District Judge Barbara Crabb's ruling that the prohibition
on same-sex vows in Wisconsin was unconstitutional. Once Crabb's announcement
was made Friday afternoon, marriage licenses were issued in Milwaukee and Dane
counties.
Rock County Clerk Lori Stottler said in an email that she can only issue marriage
licenses to Rock County residents or out-of-state residents wishing to be married in
Rock County. Proof of residency is required. Also needed: a certified copy of a birth
certificate, photo ID and Social Security number for each applicant, and the name,
address and phone number of the person who will officiate the wedding. Couples who
want to waive the state-waiting period so they can take their marriage license directly
to the officiant to get married on the same day must pay $120 in cash. Otherwise the
marriage license application fee is $95.
If either applicant was previously married, the person must bring a copy of the final
judgment of divorce, annulment or certified death certificate to prove how and when
the last marriage ended. In Wisconsin it's unlawful to get remarried until six months
and one day after a divorce is granted.

http://m.jsonline.com/262320081.htm

6/9/2014

Rock County to start issuing same-sex marriage licenses

Case: 14-2266

Document: 2-7

Page 2 of 3
Filed: 06/09/2014

Pages: 3

The Rock County Courthouse, 51 S. Main St. in Janesville, is open from 8 a.m. to 4:30
p.m.

 (2)

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http://m.jsonline.com/262320081.htm

6/9/2014

Rock County to start issuing same-sex marriage licenses

Case: 14-2266

Document: 2-7

Page 3 of 3
Filed: 06/09/2014

Pages: 3

June 8, 2014 - Rising student poverty in Wisconsin may mean more students will be able to receive free
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State justices impose time limits on debate to clear backlog

June 8, 2014 - The plan was adopted last month in private by the state Supreme Court as tensions
continue to simmer on a court often marked by personal disagreements.

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6/9/2014