Judge Crabb’s earlier ruling was unusual in that, unlike other rulings, hers did not include an injunction compelling the state to grant marriage licenses to same-sex couples. Instead, Judge Crabb asked the parties to submit proposed language for an injunction that would follow in a couple of weeks. The original deadline for those proposals was today,but when Dane and Milwaukee Counties decided to begin issuing marriage licenses even in the absence of an injunction, Judge Crab accelerated her timetable. By the time she issued her injunction and stay on Friday, some five out of every six Wisconsin counties were issuing licenses. Judge Crabb’s injunction does order state and county officials to issue marriage licenses, but she also accompanied that order with a stay pending appeal:
After seeing the expressions of joy on the faces of so many newly wedded couples featured in media reports, I find it difficult to impose a stay on the event that is responsible for eliciting that emotion, even if the stay is only temporary. Same-sex couples have waited many years to receive equal treatment under the law, so it is understandable that they do not want to wait any longer. However, a federal district court is required to follow the guidance provided by the Supreme Court. Because I see no way to distinguish this case from Herbert, I conclude that I must stay any injunctive relief pending appeal.
The remaining question is whether the stay should include all relief, including the declaration, rather than just the injunction. Although I remain dubious that it is necessary to “stay” declaratory relief, I understand that there has been much confusion among county clerks regarding the legal effect of the declaration. To avoid further confusion among theclerks, I will issue a stay of all relief.