Michelle Enderle raises her hand Monday at the Waukesha County Courthouse to swear all information on her and Rebecca Wittig’s marriage license application is correct. The couple is from New Berlin and was getting married in Frame Park. Credit: Michael Sears

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Madison — Same-sex couples are having their marriage documents held up at the state office that records them, raising further questions about the legal status of their unions.

For now, Gov. Scott Walker's administration isn't accepting the same-sex marriage certificates that are being forwarded by county registers of deeds.

"The Wisconsin Department of Health Services Office of Vital Records has not rejected same-sex marriage licenses," state Health Services spokeswoman Jennifer Miller said in a statement. "They are being held until we receive legal guidance from the attorney general."

It's unclear what this means for the hundreds of gay and lesbian couples who have celebrated weddings following a Friday ruling by a federal judge striking down Wisconsin's ban on same-sex marriage.

More than two-thirds of the 72 county clerks in Wisconsin are now issuing marriage licenses to same-sex couples, with some clerks on Tuesday reversing decisions made on Monday to decline licenses for gay and lesbian couples.

A spokeswoman for Republican Attorney General J.B. Van Hollen, who is defending the state's gay marriage ban in court, confirmed that the Department of Justice has been in touch with the state Vital Records office but declined to disclose any details, saying they were protected by attorney-client privilege.

"The validity of the same-sex marriages that have taken place thus far is uncertain," Dana Brueck said of the couples whose certificates now lie in limbo.

Miller did not provide figures on how many marriage certificates have been sent to the state by county officials since U.S. District Judge Barbara Crabb in Madison ruled the state ban unconstitutional last week. But on Monday, Dane County Register of Deeds Kristi Chlebowski, a Democrat, delivered the first batch of five completed same-sex marriage certificates to state officials and sent them out to the couples.

Chlebowski said on Tuesday her office completed about 60 more marriage certificates for same-sex couples. She offered no opinion on whether a court will uphold them or whether they are valid if the state doesn't accept them.

"That's not for me to decide. The paperwork meets the criteria for us to file it so we file it," Chlebowski said. "I'm not a judge and I'm not a lawyer."

Dane County Clerk Scott McDonell, also a Democrat, has said he believes the marriages are legal and that state officials should accept them immediately.

Legality questionable

Carl Tobias, a professor at the University of Richmond School of Law in Virginia, said the legal status of these couples is a "good question."

"They're married, but in the eyes of the state they're not, which means the attorney general holds the cards for now or the governor does to a certain extent," Tobias said.

Tobias, who has followed similar lawsuits in other states, pointed to the case of Utah, where the marriages of some gay couples are being recognized for now by the federal government but not by the state government. In that case, a state marriage ban was struck down in a decision in a federal lawsuit that was later stayed by a higher court while the case is on appeal.

"For federal income taxes, they're accepted," Tobias said of those of Utah marriages. "For state income tax purposes, no."

In other news Tuesday, the U.S. 7th Circuit Court of Appeals in Chicago issued two orders that canceled one another out. In so doing, the appellate court underlined the fact that for now it is up to county and state officials and, potentially, state courts to decide whether same-sex unions continue and are recognized.

In a one-sentence order issued late Monday, the 7th Circuit had asked parties in the case to file papers by 5 p.m. Wednesday addressing whether the appellate court has jurisdiction in the federal lawsuit that resulted in the state's constitutional ban on gay marriage being struck down.

But after further review, the panel of appellate judges Richard A. Posner, Michael S. Kanne and Ilana Diamond Rovner issued two more orders Tuesday responding to a motion by Van Hollen that sought a temporary halt to same-sex unions happening around Wisconsin.

The three-judge panel noted in one of Tuesday's orders that the judge in the original court in Madison has yet to issue a final order in the case. They ordered Van Hollen to respond by June 23 on whether the appellate court can even take up any appeal before Crabb issues an injunction blocking state officials from enforcing the marriage ban.

"The (district) court has yet to determine the specifics of the injunctive relief which it intends to enter," the 7th Circuit order reads. "...In short, this case is not at an end in the district court."

Order vacated

But the panel then quickly vacated this Tuesday order, saying it had been issued in error. It was unclear whether the error was in the legal reasoning of the order or simply in an administrative goof that resulted in the order's premature release.

"I don't know if it tips us off to their thinking or not. Maybe it doesn't," Tobias said.

In a hearing Monday — three days after issuing her historic ruling striking down the state's same-sex marriage ban — Crabb rejected a similar but separate request from Van Hollen to stay her decision. But Crabb also signaled that she or the 7th Circuit is likely to put the brakes on her ruling at some point in the coming weeks. That, in turn, would block county officials from issuing marriage licenses to gay and lesbian couples while the decision is appealed.

Crabb's decision Friday was different from others around the country. While she ruled that Wisconsin's ban on same-sex marriage was unconstitutional, she did not issue an order instructing county and state officials on what to do about it. That left county clerks to decide that for themselves.

In Monday's hearing and in a written follow-up order released later in the day, Crabb said she was leaving the "status quo" in place until she issues specific orders to public officials. By June 23, the two sides have to file arguments on what those orders should be.

When state attorneys pointed out in court Monday that county clerks aren't responding consistently to Crabb's ruling, the longtime judge and President Jimmy Carter appointee said that was an issue for state courts to decide if needed, not her. After that hearing Monday, the two sides immediately disagreed over what Crabb's responses to them meant.

Van Hollen argued the state's marriage ban is "in full force and effect." But McDonell said he would continue to operate under the status quo, "which is issuing marriage licenses."

In an earlier written statement, Van Hollen said it made no sense to let marriages proceed when the courts are likely to put them back on hold, at least temporarily, and leave those couples in legal limbo.

Megan Trimble of the Journal Sentinel staff in Milwaukee contributed this report.