After federal judge's same-sex marriage ruling, Wisconsin county clerks say 'I do'

After a federal judge Monday refused to temporarily halt same-sex marriages in Wisconsin, and the state plans a court challenge, same-sex couples in many counties there are continuing to get married.

U.S. District Judge Barbara Crabb in Madison struck down the 2006 ban Friday, but she didn't rule on how she wants her decision put into place. Then, on Monday afternoon, Crabb denied a request from Wisconsin Attorney General J.B. Van Hollen for an emergency stay to prevent further gay marriages until she hears additional arguments. In between, it didn't take long for gay couples to start lining up to tie the knot.

At least 42 of Wisconsin's 72 counties were issuing marriage licenses to same-sex couples on Monday, according to a canvass by The Associated Press. Clerks in a handful of counties did not answer phone calls. Many, but not all, also waived the state's five-day waiting period.

Dozens of couples were initially refused licenses in Appleton, Green Bay and elsewhere on Monday while county clerks in those communities sought advice from the Wisconsin Vital Records Office, which keeps marriage records. Nearly 100 people at the Outagamie County Clerk's office in Appleton objected when told they could not apply for licenses.

"We got swamped, it was really actually fun, there was a lot of energy, a lot of people, a lot of happiness, it didn't really feel like working," said Scott McDonell the county clerk in Dane County, where Madison is located. He said the county issued 137 licenses Saturday and Sunday.

"Because she struck down the constitutional ban and all the statues associated with it, for me, if a same sex couple wants to get married, I have no reason to deny them, that's the law of the land in Wisconsin right now," McDonell said.

In some counties, however, clerks said they wouldn't issue marriage licenses to gay couples without further guidance from the state.

"Because there was so much uncertainty in Judge Crabb's ruling from Friday, we wanted to make sure we were making the right decision that was legal, not making a snap judgment or impulsive decision," said La Crosse County Clerk Ginny Dankmeyer.

After Crabb denied the request Monday to halt the marriages, Dankmeyer said she and several other counties changed course and began issuing marriage licenses to gay couples.

"Some county clerks had reversed their position in the early afternoon, and even more after the hearing was done," Dankmeyer said. "The hearing did impact some of the decisions that were made in the state."

It's that legal back and forth among different counties that Attorney General Van Hollen said an emergency stay would have prevented.

There's "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," he said in a statement. A stay, he argued, would preserve the status quo during the appeals process. Now he's asked the 7th Circuit Court of Appeals to issue an emergency stay.

Carl Tobias, a University of Richmond law professor, said most judges have granted such stays, since the U.S. Supreme Court issued one in a case involving Utah earlier this year. During the first 10 days after Utah's ban on gay marriage was struck down, about 1,000 people were married.

"It wasn't clear what the validity of those marriages was. So people were in a legal limbo on a whole number of fronts, especially benefits, adoptions, and so it may avoid that problem if you have an immediate stay," he said. On the other hand, "People have waited a long time to be married, and so judges may be reluctant to prevent them from being married in particular states, so it's a real dilemma."

Alvin Berg is one of those people who's waited a long time to be married.

"I am 54 years old, my partner, Vince Nelson, is 50, we have been together for 30 years. And we never, ever thought that in our lifetime we would see marriage equality happen," he said.

The two men live in Superior, Wisconsin, but recently considered moving to Duluth after Minnesota legalized gay marriage last year. Now that won't be necessary. Nelson and Berg married yesterday at the Douglas County Courthouse.

"They said we were the first and only ones who applied for a license. But they were so nice and so happy," Berg said.

He's confident his new marriage will stand, whatever happens in the courts.

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The Associated Press contributed to this report.