There’s good news and bad news for gays and lesbians wishing to legally marry in Wisconsin.

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There’s good news and bad news for gays and lesbians wishing to legally marry in Wisconsin. After striking down Wisconsin’s ban on gay marriage last week, U.S. District Court Judge Barbara Crabb then denied the stay requested by Attorney General J.B. Van Hollen, but then made a clear (or rather confusing) point that she never indicated that county officials were to begin issuing marriage licenses to same-sex couples. Huh? So you’re for marriage equality in theory only, your honor? 

So far, about half of the counties in Wisconsin have been handing them out in a flurry and the other half is refusing. It’s mass confusion as each county tries to interpret the judge’s intent. Read more about that here.

In the hearing documents, Crabb writes:

“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.

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. Nuxoll ex rel. Nuxoll v. Indian Prairie School Dist. #204, 523 F.3d 668, 675 (7th Cir. 2008) (under Rule 65, injunction “must contain a detailed and specific statement of its terms”). It is clear enough what plaintiffs want the county clerks to do, which is issue marriage licenses. From previous briefs, it is also relatively clear what plaintiffs want defendant Anderson (the state registrar) to do, which is to amend the state marriage forms in accordance with his authority under Wis. Stat. § 765.20(1) so that the forms are inclusive of same-sex couples. However, it is still unclear what specific acts plaintiffs want defendants Walker and Van Hollen to perform or refrain from performing. It is not enough to say that defendants should be enjoined from enforcing unconstitutional laws without identifying the particular acts involved in that enforcement.

Once both sides have had an opportunity to weigh in on the appropriate scope of the injunction, I may enter judgment and determine whether the injunction should be stayed pending appeal.”

Crabb is holding another hearing on June 19, and we’re crossing our fingers that by then, marriage equality will become the law of the land in Wisconsin.

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