Wisconsin Attorney General Says County Clerks May Be Prosecuted for Issuing Gay Marriage Licenses

Wisconsin Attorney General J.B. Van Hollen (R-pictured) said Thursday that gay couples who have been issued marriage license since U.S. District Judge Barbara Crabb struck down the state’s ban on same-sex marriage last Friday are not married in the eyes of the law and county clerks who issue marriage licenses to these couples could be prosecuted.

VanhollenThe Milwaukee Journal Sentinel reports:

"You do have many people in Wisconsin basically taking the law into their own hands and there can be legal repercussions for that," Van Hollen said. "So, depending on who believes they're married under the law and who doesn't believe they're married under the law may cause them to get themselves in some legal problems that I think are going to take years for them and the courts to work out."

He said he did not believe same-sex couples could be prosecuted but that county clerks risked that happening.

"That's going to be up to district attorneys, not me," he said. "There are penalties within our marriage code, within our statutes, and hopefully they're acting with full awareness of what's contained therein."

According to state law, country clerks can be jailed for up to nine months and fined up to $10,000 for issuing marriage licenses that aren’t allowed. According to the AP, 63 of the state’s 72 counties are issuing marriage license to same-sex couples.

Dane County Clerk Scott McDonell said the possibility of prosecution “doesn’t keep me up at night,” and that Van Hollen needs to "call off the dogs and turn off the fire hoses.”

Van Hollen has appealed the ruling to the 7th Circuit Cort of Appeals and is asking for a stay.


  1. DamFine says

    Aren’t these couples considered to be married in the eyes of the Federal Government for federal benefits? Wasn’t this a statement from AG Holder? A person who is legally married cannot be un-married, or am I confused?

  2. anon says

    I’m not understanding how anyone issuing a license can be doing anything wrong anyway. The ban on same-sex marriage has been struck down and has not been stayed during the AG’s appeal. So, same-sex marriage is perfectly legal. The appeal may make it illegal again someday. But, not now.

  3. Gay Guy says

    For a state that’s broke, he’s making statements that can wind the state tied up in expensive court cases for years and years!

    How about a prosecution for gross misallocation of public funds?

  4. Retro says

    Right. Van Hollen is really going to waste tax dollars prosecuting 63 county clerks? This isn’t even civil disobedience on their part. It’s civil obedience.

  5. Zlick says

    As I understand it, the court ruled the ban unconstitutional, but has not yet issued a formal order. I seem to remember some posts here on TR about the parties submitting proposed language for that order, and that it might be issued as early as tomorrow.

    Anyway, absent that order, it might be jumping the gun for clerks to issue licenses. I just heard from a county clerk in San Diego who was instructed by her supervisors to wait for the court order, even though the court had ruled. It meant a delay of a couple of days. (This was when marriage was originally legal, before Prop 8.)

  6. simon says

    That’s right. The ban was struck down. There was no ban at the time they issued the licenses. You are allowed to do anything that is not forbidden by law. Isn’t that the American way?

  7. Mike says

    Judge Crabb’s ruling struck down Wisconsin’s state constitutional ban and any state laws that excluded gay couples from marrying. Beyond that, she gave no order about what should or should not be done. The county clerks looked at her ruling and decided that, since the amendment was gone, as well as any discriminatory state laws, they had no justification to deny same sex couple marriage licenses. Even the Republican DA in Waukesha county, the reddest county in the state, has acknowledged this. Today, in response to Van Hollen’s empty threat, he suggested that county clerks could face legal action if they didn’t offer marriage licenses to all couples. And this is the leading Republican candidate to replace Van Hollen who is not running for reelection.

  8. says

    @Gay Guy: actually, it was a result of the CA Supreme Court. Arnold vetoed the legislation.

    The Wisconsin AG is blowing hot air. He wants to intimidate the clerks. Even if they technically jumped the gun, they didn’t start issuing licenses out of thin air; there was a strong court ruling and a string of rulings favoring gay couples since Windsor. But if some prosecutor wants to go down in history as the guy who tried to bust clerks on the right side of history, it’ll be the mistake he’ll be remembered for.

  9. Retro says

    @Simon. I don’t think Van Holden is talking about “suing” the clerks (as in civil litigation); I believe he’s suggesting prosecuting them for a criminal offense related to knowingly “issuing unlawful marriage licenses,” which is part of the current Wisconsin state code on marriage. – jmho


    With 88% of the clerks interpreting it the way they have, though, this would make him look like a bigger buffoon than he already is.

  10. simon says

    My analogy may not be too appropriate. I just meant he can prosecute anyone for trivial reasons. He should understand it still has to be decided by a court of law. The clerks did nothing illegal according to the marriage code because the ban was not there anymore.

  11. Bernie says

    another rabid Republican who accuses President of Obama of NOT following the law and here this AG is threatening workers for following the law set by a judge! Can anyone say HYPOCRITE or how about poor LOSER??!?!?!??!

  12. RexTIII says

    What an amazing achievement for AG Van Hollen! No doubt the result of taking this action, a crowning moment, his life legacy. Go for it Van Hollen, the world awaits your bravery, Loser.

  13. keith says

    why doesn’t the ag threaten these clerks for issuing licenses for divorced couples getting remarried? I can not understand how Christians who continue to use scripture to dissuade gay marriage but forget what jesus said abut divorce and remarriage, which is adultery only. hetero people can divorce and remarry as often as they want. the first state to allow no fault divorce was California signed by Ronald regan in 1968.

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