Last week, Federal District Judge Barbara Crabb issued her opinion that Wisconsin's Constitutional Amendment banning same-sex marriage was against the equal protections clause of the U.S. Constitution, leaving county officials from across the state to scramble on legal opinions on whether they could start issuing licenses to couples requesting them.
It took nearly the entire day Monday, but just after 3:30 p.m., Grant County Clerk Linda Gebhard filled out the application for the county's first same sex license, joint a majority of counties across the state deciding that the court decision paved the way for the licenses to given out.
However, like many other clerks, Gebhard is telling those who apply ongoing legal actions may throw the licenses in limbo.
“It made more sense to me to wait until the attorney general and all of the judges decided it was a done deal,” Gebhard said, wishing that things were more decided, as opposed to the state of flux this issue has taken on.
Gebhard said that she had wished all of the counties would have done the same thing - issuing licenses or not - as opposed to confusing manner there is now, where many counties are issuing the licenses, while a minority are waiting.
On Monday morning, Gebhard was in the ‘wait’ camp. "Until I get a determination from corporation counsel, I am not doing anything," Gebhard said at 9 a.m. Monday morning, just 30 minutes into her day that had started with three same-sex marriage license requests right off the bat.
Judge Crabb's decision came in just after 4 p.m. Friday, less than 30 minutes before Gebhard's office was to close for the week. Because of this, Gebhard said she didn't see the whirlwind of requests that hit other larger counties in the state, which has led to hundreds of marriage licenses being handed out in Milwaukee and Dane counties.
As the sun rose on Monday, many county clerks, like Gebhard, were unsure what Friday's decision meant, on whether they could start issuing the licenses. Gebhard said they were not even sure how the current forms - which identify groom and bride on the forms - would be filled out.
Clouding the position more was Wisconsin Attorney General J.B. Van Hollen, who filed an emergency stay in the case, and moving faster than any court has, Crabb heard that motion Monday.
With any action yet to be taken on Van Hollen's motion, Gebhard wanted to get a legal opinion from current Corporation Counsel Andy Phillips before acting. Phillips waited until Crabb's ruling on the motion Monday before he would give his opinion.
Because of the requests coming in, Gebhard said Monday morning she was taking everyone's names and numbers, and told them she would call them when she got a legal opinion.
While Gebhard was telling those who called or came in that she was not handling any applications until she received a legal opinion, that was not going to deter Maureen Vorwald and Colleen McCabe, Platteville, who waited several hours in Gebhard's office until the applications were allowed.
For Maureen, being the first one to file was not a goal of theirs, only to get married as soon as they could after nearly two decades of being together with Colleen. "For us, it wasn't a competition," Maureen stated, "we just needed to get this done."
The couple has been together for 19 years, and are raising young children - ages seven and 11. It was because of their children, and wanting to ensure they both have parental rights that would not deny them from being there, that they were determined to apply to be married Monday.
"It was interesting to be first," added Colleen, that felt more people would be there waiting like they were to get a license. "I thought it would be more of line."
Colleen said it was important for her and Maureen to go to the clerk's office to find out if they could get a license, and to wait until the legal opinion came back. "I want them to see the face of who we are," Colleen said. "Its more than a legal statement, its personal," she said of whether or not she and Maureen would be allowed to marry.
" There was an urgency," Gebhard said she saw in the eyes of McCabe and Vorwald. Still, she noted she was weary of of issuing the license before that opinion, because of the uncertainty ahead, which may lead to a stay, freezing the license and putting the couple in limbo.
"Its is going to affect these couples emotionally," Gebhard stated, noting the happiness of getting the license, and the pain if any future court action takes it away. "I would have wanted to wait until I knew."
She said that once Phillips opinion came to her, she felt legally there was nothing stopping the issuance, however.
“Like Dane County said, there is no legal statement out there to stop a marriage license from being issued,” Gebhard stated. “I felt it was a better idea to go forward.”
When Gebhard got the opinion from Counsel Phillips she could move forward with the application, she told them that a future action may put the license in jeopardy. Colleen said the moment was "surreal.....Its like you have been holding your breath for so long." She said that 20 years ago, she was never sure this would happen in her lifetime. Now, "its just amazing of the possibilities."
Maureen said that there was a level of relief that they were able to actually apply, and some stress as they know things could be put on hold with a stop by the courts.
The couple wished that Gebhard would have waived the five-day waiting period for a license so they could have had it that day, instead of waiting until next Monday. Gebhard said that she usually only waives that in the case of a person in the military, or a person coming in from out-of-state, who will only be in the area for a few days before the wedding.
The couple is not sure when they will get married - like most couples, the big problem right now is finding a date and time where all their family and friends can make it. Colleen said that the pastor at their church is very supportive, so finding official is not a problem.
The other issue is they feel a bit of a sense of urgency, as any day a stay could be imposed on licenses. Crabb has set June 16 as a filing deadline for briefs on the case, and she will hold a hearing on the issue June 19. At Monday's hearing, Crabb herself said she may impose a stay at that time, but she wanted more information.
A Federal Appeals Court, or even justices from the U.S. Supreme Court may issue a stay. Justice Sonia Sotamayor issued a stay in a same-sex marriage case in Utah, as an example.
As of press time, the Appeals Court in Chicago was slated to review the matter.
Last week's ruling took down the 2006 state constitutional amendment banning same sex marriage, made an amendment after it was passed in a state-wide referendum. Vorwald said that amendment stung at the time. "We felt we weren't living in a place we thought we were," Maureen stated, noting they felt Wisconsin was more progressive and forward-thinking then that.
After the marriage licenses are issued, and the couples go through a ceremony, they will have to file those certificates with the Register of Deeds office. For Grant County Register of Deeds Marilyn Pierce, she stated those licenses will be accepted. "We will treat it as same as any other marriage license," said Pierce.
The current forms have gender roles, listing both groom and bride, on the forms. Because there has been no change or announcement from the state Department of Health Vital Records office, Pierce said the couple will have to designate how they want the titles listed.
By Tuesday evening, county officials were being told that Vital Records was placing any same-sex license on hold before they would file, awaiting opinion from their legal counsel, the Department of Justice, which, has been fighting to maintain the ban.
Regardless of what Vital Records is doing, Pierce said she is still accepting the licenses. “I will still process them.”
Gebhard said she was still planning to go forward with the licenses unless there was a stay, even if Vital Records is not processing them.
In states where same-sex licenses were given out, but the state had yet to recognize them, couples were still using the fact they were filed within their county to file joint tax returns federally.
Officials react to ruling
As Judge Barbara Crabb's ruling came in, reaction from politicians about the ruling has been largely based on political party, with one exception.
Attorney General J.B. Van Hollen, who continues to argue the state's case in front of Crabb, actually feels the ban is still in effect, as Judge Crabb did not issue an immediate injunction. “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," Van Hollen said Monday after Crabb decided not to place a stay, or stop on her decision last week, which would have fully retained the ban. Van Hollen praised counties that did not start issuing licenses in the media on Monday.
Other than Van Hollen, most Republicans have remained silent, either not issuing releases, and not responding to request on their thoughts on the issue.
A few, like State Senator Glen Grothman, who is running for Congress in the sixth district, did come out against the ruling. "“I continue to firmly believe in restoring the traditional family as the center of our society, including a loving mother and father," Grothman said denouncing the decision. "The ‘progressive’ agenda is slowly eroding the family in order to place government at the center of our lives, and this is seen in attacks on traditional marriage via the courts and by the excessive welfare system that punishes couples who get married.
Meanwhile, State Sen. Dale Schultz, while on vacation with his family, decided to write a detailed column about his feelings supporting Judge Crabb's decision, and about how his own view evolved since supporting the ban in 2006.
"We fear what we do not understand. We fear those who are different. We fear losing what we have," Schultz said, referring back to his farewell address to the State Senate. Schultz said that when he was Majority Leader, he backed the same-sex marriage amendment ban because it was what he believed, and what a majority of residents in the state wanted.
He, however, changed his mind over time.
"Over the past decade brave and courageous individuals have stepped forward publicly to share with friends, family, and co-workers who they are," Schultz said. Noting several examples, and even quoting country music singer Willie Nelson - who once said "[gay people] should be just as miserable as the rest of us" when talking about marriage - Schultz said laws like the ban, that discriminate need to be reexamined.
"When we take away our masks, and face each other for who and what we are, without judgment, fear of loss or recrimination, then we can begin to listen, we can begin to talk, and then we can begin to make progress," Schultz surmised.
Joining Schultz in support of Crabb's decision were Congressman Ron Kind and U.S. Senator Tammy Baldwin as Democrats largely supported the court.
“Love is love, family is family, and discriminating against anyone’s love, against anyone’s family, is just plain wrong. Wisconsin can proudly say that discrimination doesn’t just violate our values – it violates our Constitution," Baldwin said. "And now we can proudly say that marriage equality will be the law of the land in Wisconsin."
“We believe that history only moves in one direction: Forward. It’s our state motto and this is a huge step forward for Wisconsin being a place where every family’s love and commitment can be recognized and respected under the law," Baldwin continued.
"“This decision is an important step toward full equality for all Wisconsinites. If two people want to make a lifetime commitment to love and care for one another, then the government shouldn't stand in the way. History has repeatedly shown us that discrimination never works," Kind added. “Tawni and I have been married for 19 years and we’re both stronger people because we love and support each other. In Wisconsin, the joys of marriage should be possible for everyone.”