Same-sex couples and their supporters are seen Monday being refused marriage licenses by Outagamie County Clerk Lori O'Bright (right). O’Bright’s office reversed course later in the day and began issuing the licenses. Credit: Associated Press

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Madison — Wisconsin Attorney General J.B. Van Hollen said Thursday that same-sex couples who have wed in recent days are not married in the eyes of the law and that county clerks issuing marriage licenses to gay and lesbian couples could be prosecuted.

Also Thursday, Republican Gov. Scott Walker backed Van Hollen's work defending the gay marriage ban but sidestepped questions on whether clerks should be charged and what his personal views on gay marriage are now.

Three district attorneys running for attorney general — two Democrats and a Republican — said they would not issue charges against clerks and their area. A Democratic state representative running to succeed Van Hollen also criticized the idea of issuing charges.

"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 in an interview with the Milwaukee Journal Sentinel. "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."

The Republican attorney general said he did not believe same-sex couples could be prosecuted but that county clerks risked charges.

"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."

But lawyers for the couples who sued over the gay marriage ban noted in court documents Thursday that the attorney general — not just district attorneys — has the ability to prosecute any matter in which people of Wisconsin have an interest.

Dane County Clerk Scott McDonell said the possibility of prosecution "doesn't keep me up at night." McDonell, a Democrat andthe first clerk to issue marriage licenses to same-sex couples in Wisconsin, called Van Hollen's claim of possible charges ridiculous.

"He needs to call off the dogs and turn off the fire hoses," he said, invoking extreme police responses to some civil rights protests of the 1960s.

County clerks can be jailed for up to nine months and fined up to $10,000 for issuing marriage licenses that aren't allowed under state law. The same section of the statutes also provides penalties for judges, ministers and others who officiate over a "fictitious marriage," but Van Hollen did not address whether they could be charged.

Sixtyof Wisconsin's 72 counties are issuing marriage licenses to same-sex couples, according to a tally by The Associated Press.

In a 30-minute interview at Department of Justice headquarters, Van Hollen said he was simply doing his job by defending the state's gay marriage ban. Van Hollen, who is not seeking a third term this fall, said his work on the case would become part of a legacy he could be proud of because it showed he fought for the rule of law.

"Constitutions don't defend themselves," he said. "They're not worth the paper they're written on if someone does not defend what's in there...My primary oath and obligation that I have as attorney general above all else is to defend our constitution, above our laws, above everything else.

"It's actually quite a simple concept that people are either intentionally confusing, don't want to understand or really haven't gotten the message."

United States District Judge Barbara Crabb last week declared that Wisconsin's ban on same-sex marriage violated the U.S. Constitution's guarantee of equal protection of the law. She has not yet entered an injunction instructing public officials what to do about her finding.

Van Hollen has argued clerks can't issue marriage licenses to same-sex couples because Crabb hasn't issued an injunction. He's asked her to block gay marriages while he pursues review by the 7th Circuit Court of Appeals in Chicago.

"To me, this is really a manufactured controversy that was unfortunately aided a little bit by Judge Crabb's lack of willingness to provide clarity," he said of the ongoing same-sex weddings.

Walker on Thursday told reporters during a campaign stop in Oak Creek that he backed Van Hollen's legal fight over the gay marriage ban, saying the attorney general had an obligation to uphold the state's constitution. He did not say what he thought of the idea of charging county clerks.

"I'm not a lawyer so I don't know the legal ramifications," he said.

Walker acknowledged he voted for the constitutional amendment banning gay marriage in a 2006 referendum but declined to say whether he still opposed allowing the practice. The referendum passed with 59% of the vote but a poll last month by Marquette University Law School showed 55% of registered voters now support gay marriage.

"It really doesn't matter what I think now — it's in the constitution," Walker said.

Walker's Democratic opponent, former Trek Bicycle Corp. executive Mary Burke, supports gay marriage and has called on Walker and Van Hollen to drop their defense of the gay marriage ban.

Van Hollen's comments on potential charges against county clerks inject a new issue into the race to succeed him.

Three Democrats are running — Jefferson County District Attorney Susan Happ, Dane County District Attorney Ismael Ozanne and state Rep. Jon Richards of Milwaukee. All three have said they would not defend the state's ban on gay marriage.

The winner of the Aug. 12 Democratic primary will advance to the Nov. 4 general election against Waukesha County District Attorney Brad Schimel, the only Republican in the race.

Schimel voted for the gay marriage ban and says he would defend it in court but on Friday ruled out charging Waukesha County Clerk Kathleen Novack for issuing same-sex marriage licenses.

Because of Crabb's ruling, Novack could have faced legal action from gay marriage supporters if she declined to issue licenses and from opponents if she issued them, Schimel said. He said Novack had sought legal advice from the county's corporation counsel and then followed it.

"The clerk found herself in what she believed to be an untenable situation," Schimel said. "...It's not possible for me to ethically bring charges against her. You cannot put a person under the law in the position that whichever way they turn, they risk violating the law."

Happ and Ozanne said they would not charge their clerks and they and an aide to Richards scoffed at the notion of doing so.

"We're getting closer to not having second-class citizens in this state," Ozanne said. "It seems to me that this point the attorney general won't let it go."

"Attorney General Van Hollen's choice of action is through the appellate process, not threatening criminal prosecution of the clerks who are doing their jobs," Happ said in a written statement.

Sachin Chheda, an adviser to Richards, said Van Hollen was "sowing seeds of confusion about a court case he has lost and is going to continue to lose."

Reacting to Van Hollen's comment, Madison attorney Lester Pines delivered a letter Thursday to the attorney general arguing the judge has voided the gay marriage ban and urging him to inform county clerks "they have not violated any law" by issuing licenses to same-sex couples.

Crabb is to hold a hearing at 1 p.m. Friday and could issue an injunction then or soon afterward. Van Hollen said he believed he had a good shot at getting Crabb to stay any injunction she issues, which would halt gay marriages during the appeal.

Van Hollen has already sought to block gay marriages from the appeals court and said he would go to the U.S. Supreme Court if necessary.

If the federal courts do not issue a stay to halt gay weddings, Van Hollen said he would consider filing one or more actions in state court to stop them. He called that unlikely but said he wouldn't rule it out.

As to the merits of the case, Van Hollen said he was "absolutely" willing to take the issue to the U.S. Supreme Court but noted the nation's highest court would likely take a similar case from another state that is further along in the appeals process.

The state Office of Vital Records began accepting same-sex certificates submitted by the counties this week. The agency — which is controlled by Walker's administration — initially did nothing with them.

Van Hollen said the Vital Records Office merely paused its work while awaiting legal advice from his office.

"It's neither a flip nor a flop. They're continuing to do business as usual," Van Hollen said.

Walker struck a similar note, saying the office had no discretion in how to handle the marriage certificates from same-sex couples.

"It's very clear they're abiding by the same administrative responsibilities they had in the past," he said.

Van Hollen granted his interview in a conference room at the Risser Justice Center that houses his agency's attorneys. The building's lobby features a poster with an American flag, rainbow flag and pink triangle in recognition of gay and lesbian pride month.

Van Hollen said the poster had no relation to the case at hand.

"I think you're talking about two completely different things," he said. "You're talking about people's personal beliefs, you're talking about social acceptability, you're talking about diversity in the workplace. This case that we're talking about...it's actually very simple. We have a constitution in the state of Wisconsin. The constitution says only couples of the opposite gender can get married."

Daniel Bice of the Milwaukee Journal Sentinel staff contributed to this report from Oak Creek.