Federal Judge in Wisconsin Stays Week-Old Ruling Striking Down Gay Marriage Ban Pending Appeal

A federal judge in Wisconsin last night issued a final ruling striking down the state's gay marriage ban, then immediately put that ruling on hold, effectively stopping the state's counties from issuing marriage licenses to gay couples while the case is appealed to the Circuit Court, the Journal Sentinel reports:

CrabbThe 14-page order from U.S. District Judge Barbara Crabb in Madison halted the same-sex weddings taking place in most of the state and set up an appeal by the state to the federal 7th Circuit Court of Appeals in Chicago. The judge gave no indication whether the hundreds of same-sex marriages already performed will hold up in court.

She said that if left to her own judgment, she would not have stayed her order and would have allowed same-sex marriages to go forward. But she said she felt compelled to halt them because of how the U.S. Supreme Court and other courts have acted in similar cases.

Wrote Crabb in the order:

"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."

Read the order HERE.


  1. tad says

    This is a ridiculous and quite cruel decision by this judge. It is supposed to be left up to her judgment – that is why she is employed on the federal bench. The state should have to appeal to the higher court for a stay, not just be granted one on a preemptive basis. Why is it only gay issues that receive this kind of discriminatory handling by our court system?

  2. Nigel says

    This is the face of institutional discrimination. The judge finds that constitutional rights are being withheld but issues a stay without discussing how the criteria for a stay are met. Sad sad sad. How can she sleep at night?

  3. says

    The truth is, if she hadn’t imposed a stay, it would have been imposed on her. (Though it can be argued, as Tad does, that she should have made the decision on stay criteria alone, never mind SCOTUS.) The judge’s decision, which is anything but “double speak,” will live on long after the temporary stay bites the dust. Unlike the Republican powers-that-be in Wisconsin, who happen to be male, she’s on our side, as are all the judges who have ruled since Windsor. So in that sense, yes, she is “typical.”

  4. Zlick says

    No, Tad. It’s not up to her judgment. If it were, some other judge could just ignore the U.S. Constitution. She upholds the law very carefully, and she has no option but to follow the lead of the U.S. Supreme Court in the Utah case, which is now controlling law.

    In any event, yes, the appellate court above her would have issued the stay. But, if you have the patience, read her very long ruling on the stay, and her ultra long tome on the actual case. It’s a slog, but she’s a very careful and absolutely thorough jurist.

  5. Malcolm says

    She is a judge. She has to abide by the law, which includes precedent set by higher courts. It is clear from the Utah case that the US Supreme Court wants lower courts to stay any decisions in favor of same-sex marriage, unless there is no one with standing to appeal the matter higher, as is the case in Oregon. If this judge didn’t stay her decision, the Appeals court or SCOTUS would have intervened and done it anyway. She is just abiding by precedent.

  6. simon says

    The Republicans in Wisconsin won’t allow it to pass, especially the AG. He will fight it all the way to the Supreme Court. It is a matter of time it will reach the high court, probably not the first one as many others are on their way.

  7. Hunter says

    She should have issued an immediate stay. SCOTUS already weighed in on whether stays should be granted in same-sex marriage cases. Now all the couples married during that week are in legal limbo, just like in Utah and Michigan. The original ruling was great for WI, but it’s now overshadowed by her irresponsible handling of the motion to stay issue.

  8. John says

    I think some of you are not understanding what is happening. By waiting until hundreds of couples were married before issuing her stay, that could guarantee the Supreme Court will take the case if the Appeals Court affirms her decision, due to the hundreds of people that now face legal jeopardy through no fault of their own. Judge Crabb issued a beautifully nuanced 88-page ruling basically stating that depriving gay couples of marriage deprives them of liberty. The Federal Appeals Court will hear the State’s appeal as early as this week. I believe they will not find there is any factual, legal or procedural question to Judge Crabb’s ruling that allowed same-sex marriage. Wisconsin will then appeal to the U.S. Supreme Court. I haven’t looked to see if there are any other similar cases on their docket, but I would be pleased as punch if this Wisconsin case became the “Roe v. Wade” landmark ruling allowing national gay marriage. If the Supreme Court agrees to hear the case, I am hoping for a 6-3 ruling in favor of gay marriage, with Chief Justice Roberts also ruling in favor, which would be a huge surprise. I predict Justices Alito, Scalia and Thomas would vote against. I’m not a lawyer, but I think this is a clear-cut 14th Amendment case and I am sitting and waiting with a front row seat to see how this unfolds. Again, I believe the legal jeopardy of hundreds of American citizens will force the Supreme Court to take up the case. This is a judge who knows exactly what she’s doing and I am now eagerly awaiting what will happen.

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