MADISON, WI, June 9, 2014 ( – A federal judge has ruled that a Wisconsin law defining marriage as a union between one man and one woman is unconstitutional, the latest in a string of such decisions handed down by U.S. courts this year.

U.S. District Judge Barbara Crabb stopped short of issuing a final judgment in the case, however, giving the eight homosexual couples who sued the state a deadline of June 16 to tell her exactly what they want her to order the state to do. Until then, the state is in legal limbo, as county clerks must decide for themselves whether to follow the law, which is technically still on the books.

In issuing her 88-page ruling Friday, Crabb dismissed state officials’ concerns about the potentially damaging effects of marriage redefinition on society as unfounded.


“If the state is going to deprive an entire class of citizens of a right as fundamental as marriage, then it must do more than say ‘this is the way it has always been’ or ‘we’re not ready yet,’” Crabb wrote.  “At the very least it must make a showing that the deprivation furthers a legitimate interest separate from a wish to maintain the status quo. Defendants attempt to do this by arguing that allowing same-sex couples to marry may harm children or the institution of marriage itself. Those concerns may be genuine, but they are not substantiated by [the state].”

Crabb rejected the state’s argument that true marriage is fundamentally a procreative union ordered toward the conception and rearing of biological children.

“Gay persons have the same ability to procreate as anyone else and same-sex couples often raise children together, so there is no reason why a link between marriage and procreation should disqualify same-sex couples,” Crabb wrote.  “Civil marriage is a legal construct, not a biological rule of nature, so it can be and has been changed over the years; there is nothing ‘impossible’ about defining marriage to include same-sex couples, as has been demonstrated by the decisions of a number countries and states to do just that.”

Crabb also dismissed the state’s argument that the federal government lacks the constitutional authority to force individual states to recognize gay unions.

“That defense has long since been discredited,” Crabb wrote. “We are long past the days when an invocation of ‘states’ rights’ is enough to insulate a law from a constitutional challenge.”

Bishop Robert Morlino of the Roman Catholic Diocese of Madison said he was “deeply saddened” by the ruling. 

“Marriage is, and can only ever be, a unique relationship solely between one man and one woman, regardless of the decision of a judge or any vote,” Morlino said in a statement. “In striking down the constitutional amendment in our state which protects marriage, the court has, once again, shaken one of the most precious and essential building blocks of our civilization.  There can be no question that the best formation for children is in the home of their biological mother and father, generally speaking, and we should always have a greater concern for future generations than we do for ourselves.”

Morlino said the diocese would support state officials in their efforts to reinstate the law.

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Family Research Council President Tony Perkins also took Judge Crabb to task for what he described as a pattern of judicial activism targeting religious believers.  Noting her previous rulings against the National Day of Prayer and tax-exempt housing allowances for clergy, he warned that her decision to strike down Wisconsin’s voter-approved true marriage law could lead to persecution of those who believe homosexuality to be immoral. 

“Once again, [Judge Crabb] has neglected to consult the Constitution that she was sworn to uphold.  This is why it's not surprising that she would display similar contempt for the right of Wisconsin voters to preserve marriage as it has always been defined,” Perkins said in a statement. “Those pushing for the redefinition of marriage have long since moved from a 'live-and-let-live' mentality. Their efforts are creating serious inequality as people are forced to suppress or violate the basic teachings of their faith, or face legal repercussions and harassment.”

Although Judge Crabb stopped short of ordering counties to begin issuing marriage licenses to same-sex couples, officials in Dane and Milwaukee counties extended their office hours Friday evening anyway, granting nearly three hundred licenses between them. 

Normally, there is a five-day waiting period for marriage licenses in Wisconsin, but officials in both counties waived the requirement to allow homosexual couples to marry over the weekend, before Judge Crabb had a chance to consider the state’s request for a stay of her ruling pending appeal. 

However, officials in Fond du Lac and several other counties said they would not be offering marriage licenses to same-sex couples unless ordered to do so by the court.

“Right now the Attorney General says the old law prevails,” Fond du Lac County Executive Allen Buechel told the Associated Press on Saturday. “Until he gets a final determination on his request for an injunction or stay, at this point I believe the state law remains in place.” 

On Monday afternoon, Crabb denied Attorney General J.B. Van Hollen’s request for a stay, but said she would take no further action until she hears back from the plaintiffs in the case. 

Now, the state remains in turmoil as at least 18 counties have begun issuing licenses to same-sex couples, while others refuse.

“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,” Van Hollen said in a statement. 

In denying Van Hollen’s request for a stay, Crabb said she was sympathetic to his concerns, but claimed that since she never ordered the counties to begin issuing licenses to same-sex couples in the first place, it’s out of her hands.

“I understand defendants' concern that some county clerks have been issuing marriage licenses to same-sex couples since I issued the June 6 decision,” Crabb wrote in her Monday order, “but that is not a result of an injunction by this court. Thus, if defendants believe that a particular county clerk is issuing a marriage license in violation of state law, that is an issue outside the scope of this case.”

Van Hollen has filed an appeal with the 7th Circuit seeking to overturn Crabb’s ruling and asking them to block enforcement pending the state’s appeal. 

However, Crabb said Monday that the appeals court cannot take up the case until she issues her final ruling against the state, which won’t happen until she hears back from the plaintiffs.