ALERT:

FEDERAL DISTRICT COURT JUDGE STRIKES DOWN

WISCONSINS SAME SEX MARRIAGE BAN

On Friday, June 6, 2014, federal district judge for the Western District of
Wisconsin Barbara Crabb struck down Wisconsins constitutional amendment banning
same sex marriage. Judge Crabb ruled that the same sex marriage ban violated the Equal
Protection Clause of the United States Constitution. (A link to the decision can be found
here: http://www.jsonline.com/blogs/news/262169171.html). The plaintiffs in the case
are same sex couples who reside in Wisconsin and the defendants are Governor Scott
Walker, Attorney General J.B. Van Hollen, State Registrar Oskar Anderson and the
county clerks of Dane, Milwaukee and Racine Counties.

Importantly, Judge Crabb did not enter an order requiring any governmental body
or official to take, or refrain from taking, any particular action. Instead, Judge Crabbs
Opinion and Order provides:

It is DECLARED that art. XIII, 13 of the Wisconsin
Constitution violates plaintiffs fundamental right to marry and
their right to equal protection of laws under the Fourteenth
Amendment to the United States Constitution. Any Wisconsin
statutory provisions, including those in Wisconsin Statutes chapter
765, that limit marriages to a husband and a wife, are
unconstitutional as applied to same-sex couples.

Judge Crabb has provided the plaintiffs until June 16 to submit a proposed
injunction to describe what acts they want each named defendant to do or be enjoined
from doing. The defendants then have one (1) week from the date plaintiffs file their
proposed injunction to file an opposition. Plaintiffs have one (1) week from that date to
file a reply in support of their proposed injunction. At this point, it remains unclear as to
the scope of the injunctive relief that plaintiffs will seek and, as well, the scope of the
relief that Judge Crabb is inclined to enter.

In the meantime, the State Defendants have filed an emergency motion to stay
Judge Crabbs decision to preserve the status quo until the Court has entered injunctive
relief and decides State Defendants motion to stay pending appeal to the 7
th
Circuit
Court of Appeals. The State Defendants also filed a notice of appeal this morning. It is
our understanding that during a conference with the parties this afternoon (June 9), Judge
Crabb refused to grant the State Defendants request to stay her Opinion and Order.

Section 765.08 provides that no marriage license may be issued within 5 days of
application for a marriage license unless a clerk, at his or her discretion, issues a license
in less than 5 days. Therefore, an application for a marriage license filed today (June 9)
is not required to be acted upon this week unless a clerk, in his or her discretion,
expedites the license request. Given the uncertainty surrounding the scope and current

applicability of Judge Crabbs decision, the clerk could:

(1) accept marriage license applications from same sex couples and advise
those couples that state statute provides for at least a five-day waiting
period between the time an application is filed and a license is granted.
The Clerk may wish to inform the applicants that further court rulings may
impact the application or execution of the license; or

(2) accept marriage license applications from same sex couples and approve
and expedite at the discretion of the clerk.

At this point, there are many more questions than answers surrounding Judge
Crabbs decision. We anticipate providing additional guidance on the procedural posture
of the case and a county clerks obligations thereunder as the procedural status of the case
clarifies.