Matt Schrek (left) and Jose Fernando Guitterez were the first couple to get married at the Milwaukee County Courthouse after a federal judge struck down the ban on same sex marriage on June 6. The American Civil Liberties Unions of Wisconsin says it plans to file a lawsuit to preserve marriages conducted after the ruling. Credit: Gary Porter

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Madison — Attorneys for the American Civil Liberties Union of Wisconsin are preparing to file a lawsuit to protect more than 500 same-sex marriages that remain in legal limbo.

A representative of the ACLU said the suit would be filed if Attorney General J.B. Van Hollen carries through with his pledge toappeal a decision to strike down a Wisconsin ban on same-sex marriage and nullify the marriages issued in the week before the decision was stayed.

"We feel the state's refusal to recognize these marriages violates these individuals'due process right to remain married," said Molly Collins, associate director of the ACLU of Wisconsin. "All couples married under Wisconsin law should be able to remain married."

U.S. District Judge Barbara Crabb declared the state's gay marriage ban unconstitutional on June 6, and couples rushed to courthouses to get married over the next eight days.

On June 13, Crabb issued a final order and an injunction instructing officials on how to treat same-sex couples who wanted to get married. But she also stayed her order pending appeal, preventing any more same-sex marriages for the time being. Van Hollen appealed after Crabb's initial order, but dropped it once Crabb suspended gay marriage for now.

Dana Brueck, a spokeswoman forthe Wisconsin Department of Justice, said Van Hollen plans to file a new appeal soon. Brueck said the attorney general believes the validity of the marriages before Crabb's stay is "uncertain" and the county clerks who issued licenses did not have the authority to issue the licenses.

In an interview with the Milwaukee Journal Sentinel in June, Van Hollen said county clerks who issued marriage licenses were subject to prosecution by districtattorneys and marriage certificates provided to same-sex couples in Wisconsin violated the state constitution, regardless of Crabb's decision.

"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 the June interview. "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 next day he sent an email to prosecutors saying he would not encourage them to file charges against clerks.

Collins said the ACLU of Wisconsin issued a request online to same-sex couples married in Wisconsin between June 6 and 13 to take a survey and potentially testify in a lawsuit. As of Tuesday, the ACLU received 42 responses from couples who had been together for five years or more, she said.

"We've heard really compelling reasons for people who need recognition quickly," Collins said.

Collins said many couples hoped to gain access to marital privileges offered under the state before the birth of their children so that both parents could be listed on the birth certificate.

In a case in Indiana, one couplerequested that the state recognize their same-sex marriage in order to obtain privileges there, according to the Indianapolis Star.

After receiving the couple's request, the 7th Circuit U.S. Court of Appeals in Chicago ordered Tuesday that Indiana officials must recognize the marriage of the Hoosier couple. Amy Sandler and Niki Quasney sought recognition because Quasney suffers from ovarian cancer and she hopes Sandler and the couple's two daughters will be able to collect Social Security and other death benefits.

Law professorCarl Tobias said the court's order will likely not set a precedent on whether it willrecognize other same-sex marriages, but some Wisconsin couples could request recognition.

"If one of them is very ill or if there is some other emergency it may be possible, but that is not many of the people we're talking about," said Tobias, a professor at the University of Richmond School of Law.

The appellate court also announced Tuesday that it would expedite the Indiana case, moving up the filing date from Sept. 19 to Aug. 5. It could potentially speed upthe Wisconsin case,as well.

Tobias said the issue is being heard in appellate courts across the country. The 10th Circuit U.S. Court of Appeals in Denverupheld a decision in Utah striking down a ban on same-sex marriage there last week and is expected to decide on an appeal from Oklahoma soon. And the 4th Circuit Court of Appeals in Richmondis expected to decide on a similar Virginia case any day, Tobias said.

"The Supreme Court could grant any of them, but I think it will wait until it gets a couple," Tobias said.

Nationwide, same-sex couples have the right to marry in 19 states and the District of Columbia. Judges in nine of the remaining 31 states have issued rulings striking down same-sex marriage bans, with those rulings stayed as they work their way through appellate courts.

In Wisconsin, voters in 2006 resoundingly approved the same-sex marriage ban, 59% to 41%. Every county in the state except Dane County voted for it. But the most recent Marquette Law School poll, released May 21, found 55% of registered voters statewide now favor allowing gay marriage, while 37% oppose it and 6% say they do not know.

Collins said she is confident that same-sex marriages will be recognized in Wisconsin. "We wouldn't bring the case if we didn't think we'd win," Collins said. "We don't want to put that precedent out there."