The Rev. Suzelle Lynch of Unitarian Universalist Church West in Brookfield marries Karen Wells (right) and Kristie Erickson (left) of Waukesha in a ceremony Monday in the courtyard outside the Waukesha County Courthouse. Credit: Michael Sears

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Madison — A federal judge in Madison declined Monday to put gay marriages on hold in Wisconsin, leaving it for now to county officials, a federal appeals court and, possibly, state courts to decide whether same-sex unions continue around the state.

Three days after issuing her historic ruling striking down the state's same-sex marriage ban, U.S. District Judge Barbara Crabb rejected a request from Attorney General J.B. Van Hollen to stay her decision. But in a hearing Monday, she signaled that she or a federal appeals court is likely to put the brakes on her ruling at some point in the coming weeks. That in turn would block county officials around the state from issuing marriage licenses to gay and lesbian couples while the decision is appealed.

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

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. She set her next hearing for June 19.

Crabb's order Monday leaves the state divided into counties such as Dane, Milwaukee and Waukesha, where clerks are issuing same-sex marriage licenses, and counties such as Ozaukee, Washington and Racine, where they are not.

At least 31 of Wisconsin's 72 counties issued marriage licenses to same-sex couples Monday. At least 30 declined to do so but were waiting for directions from from the attorney general's office or their corporation counsel. The remaining 11 did not respond Monday to calls from the Milwaukee Journal Sentinel.

When asked by state attorneys Monday about that inconsistency from county-to-county, Crabb said it was an issue for state courts to decide if needed, not her.

"They did not act because I told them they could," Crabb said of county officials. "I never said anything about whether any county clerk could go forward and issue a marriage license. That hasn't been decided."

The hearing in Madison was one of a pair of actions in the rapidly unfolding case that Van Hollen took Monday seeking an emergency halt to gay weddings.Lawyers for the Republican attorney general asked Crabb for a stay in Monday's hearing and also filed a petition for a stay with the 7th Circuit Court of Appeals in Chicago.

The two sides immediately disagreed over what Crabb's response meant.

"Wisconsin's marriage law is in full force and effect, and all state and local officials are under a continuing duty to follow Wisconsin's marriage law unless and until the court enjoins that law," Van Hollen said in a statement.

Dane County Clerk Scott McDonell, a Democrat, stepped out of Crabb's hearing Monday and said he would continue to issue marriage licenses to same-sex couples.

"The status quo is what we're doing now...which is issuing marriage licenses," McDonell told reporters.

'We have inconsistency'

McDonell was among the public officials sued by four same-sex couples in February, but he sat with the plaintiffs at Monday's hearing because he sides with them on the issue and was sued only in his official capacity. The couples, represented by the American Civil Liberties Union of Wisconsin, also sued Van Hollen, Gov. Scott Walker and other state and county officials.

Backing up McDonell on Monday was David Gault, an assistant corporation counsel in Dane County, which is controlled by a Democratic county executive and liberal County Board. Gault said Crabb's decision Friday was "unambiguous" and that there is no prohibition on same-sex couples getting married.

"We're not speculating," he said. "We're following the black letter of her decision."

In the hearing, state Assistant Attorney General Timothy Samuelson said a stay was essential because counties are taking different actions on the issue.

"We have inconsistency among the counties," he told Crabb.

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

"The U.S. Supreme Court will almost certainly decide this important issue once and for all during its next term. There is absolutely no reason to allow Wisconsin's county clerks to decide for themselves, on a county-by-county basis, who may and may not lawfully get married in this state," he said.

Also Monday, Dane County Register of Deeds Kristi Chlebowski delivered the first batch of completed same-sex marriage certificates to state officials. That underlined the uncertainty about whether Walker's administration would accept the certificates, as even the purely clerical parts of the marriage process become politicized.

Chlebowski said that as of 12:30 p.m. Monday she had received about 60 marriage licenses for same-sex couples that were issued over the weekend. She said she sent out five marriage certificates at that point and hand-delivered copies of those five to the Wisconsin Department of Health Services' Vital Records office.

"We're just going to keep cranking them out until they tell us not to," Chlebowski said.

Officials in the state vital records office are seeking advice from the attorney general on what to do with them, said Jennifer Miller, speaking for the Department of Health Services, which oversees the office. A spokeswoman for Van Hollen declined to say what that advice will be.

Predicting a stay

Carl Tobias, a professor at the University of Richmond School of Law in Virginia, said he was expecting either Crabb or the 7th circuit to issue a temporary stay stopping the same-sex marriages.

Tobias, who has followed the surge in lawsuits over gay marriage bans around the country and believes that such prohibitions are unconstitutional, pointed to an Idaho case in which the 9th Circuit Court of Appeals issued a separate stay of a decision striking down a gay marriage ban. That order cited an earlier stay that was issued by the U.S. Supreme Court in a separate but similar case in Utah.

"It's a reluctant yes," Tobias said of his hunch that a stay will eventually come. "That's the way things have played out (elsewhere.)"

From Friday to Saturday, 283 same-sex couples were issued marriage licenses in Dane and Milwaukee counties, according to Van Hollen. Other counties did not issue such licenses before Monday.

As both sides were rushing to make their arguments in court, some same-sex couples felt an urgency to exchange their vows before any potential stay could be handed down.

The scene at Dane County's administrative offices Monday wasn't as busy as it was on Friday night and Saturday. But a few couples were still getting married on the building's outside steps and the words "LOVE WINS" were scrawled in colorful chalk on a landing nearby.

Kaylen York and Elyse Kleist, who have been together for about two years, proudly held a gold envelope emblazoned with the words "Marriage License." Both had to work Friday, so they decided to wait until Monday morning to make their union official.

"We weren't sure if there would be time for us to get it before a stay came through or before (the decision) was overruled," York said. "So we took a chance and said, 'We'll wait until Monday to make sure it's still official and, if it is, we'll make it happen.'"

"And we got lucky," Kleist said as she looked at her partner and smiled.

York said she worried their new marriage would be nullified by a stay on the decision, "but we thought we would take the chance."

Other couples, including two of the original plaintiffs challenging the state ban, weren't moving so quickly Monday. Garth Wangemann and Roy Badger said they had postponed their wedding at the recommendation of their ACLU attorneys.

"I feel kind of torn. Part of me just wants to run down to the courthouse, but another part wants to wait until we know we're in the clear," Badger said Monday. "I want to make sure it's not being ripped away from us again."

And if it's reversed?

Julaine Appling, executive director of Wisconsin Family Action, said Monday that Crabb should have heeded Van Hollen's advice to stay the decision. Appling's group helped promote the referendum that banned same-sex marriage in 2006 and more recently filed a friend-of-the-court brief in the case.

"Obviously some counties are issuing and obviously some counties are saying, 'No, we should wait for the attorney general's ruling,'" Appling said. "It's exactly the ambiguous situation we all hoped to avoid."

Appling said she hopes the 7th Circuit will make a decision promptly on Van Hollen's appeal.

"We need to get rid of the chaos and confusion going on with the county clerks," Appling said. "The horse has left the barn, and now the legal minds are going to have to figure it out on this one."

Rick Esenberg, president of the conservative Wisconsin Institute for Law & Liberty, said that he disagreed with Crabb's ruling striking down the marriage ban but considered it well-written.

Because Crabb didn't explicitly order county officials to issue marriage licenses, Esenberg said, he could understand her decision Monday not to issue a stay.Still, he cautioned the county officials issuing marriage licenses to consider what will happen to those couples if higher courts end up restoring the ban.

"You've created the problem that now what happens if Judge Crabb gets reversed," Esenberg said.

Ashley Luthern of the Journal Sentinel staff contributed to this report from Milwaukee.