NEWS BLOG (WSAU) Today's blog isn't about gay marriage. It's about judicial malpractice.
Federal Judge Barbara Crabb created a mess, and has done very little to un-do it.
Last Friday she ruled that Wisconsin's constitutional ban on same-sex marriage was illegal. Fine, that's her ruling and she's entitled to make it. But her ruling did not clarify what should happen when same-sex couples go to their county clerk and request a marriage license. And, indeed, there were couples waiting at the clerks' offices as the ruling came down.
County clerks are not blameless here. In Dane and Milwaukee counties the marriage licenses were being handed out before anyone even read the ruling. The announcement came "l it's unconstitutional! " and the license paperwork began flowing. Some couples were married on the steps of the county office buildings before anyone could have read the full 89-page decision.
Judge Crabb's ruling was not clear on whether same sex marriages could begin right away. For her ruling to be so un-clear is unconscionable. So each county clerk was left to decide for themselves. While clerks, as elected officials, have some discretion about running their offices, they are not supposed to interpret the law; they're supposed to carry it out. This is also unfair to gay couples. It is a clear Fourth Amendment equal-protection violation for gays to be able to get married in some counties, but not others, based on where they happen to live. If the courts gave clear direction -- "yes" or "no" for immediate same-sex marriages -- we'd be spared to confusion we have now.
There will be a further court hearing this [Friday] afternoon. I hope today that Judge Crabb is definitive. At least then everyone will know were we stand. The current state of limbo is a mess.