U.S. District Judge Barbara B. Crabb has rejected an attempt by Wisconsin officials to delay the marriage equality case pending before her. Ruling on March 24, Judge Crabb confirmed a schedule established by Magistrate Judge Stephen Crocker to complete briefing in the case by the end of May 2014, with arguments on a motion for summary judgment expected soon after. “Abstaining or staying the case would serve no purpose but to delay the case,” wrote Crabb in Wolf v. Walker, 2014 U.S. Dist. LEXIS 38554 (W.D. Wis., March 24, 2014).
Eight same-sex couples filed suit in the Western District of Wisconsin challenging the state’s ban on same sex marriage, which is contained in a constitutional amendment and statutes. They had filed a motion for a preliminary injunction, but Judge Crabb suggested that if they would withdraw the motion, she would set an expedited scheduled to get the case through discovery to a summary judgment hearing quickly. They withdrew their motion, the magistrate set a short briefing schedule, and then the defendants — Governor Scott Walker, Attorney General J.B. Van Hollen, Secretary of Revenue Richard G. Chandler, State Registrar Oskar Anderson, and two district attorneys — filed a new “motion to abstain and stay,” arguing that Crabb should put the case “on hold” until a case now pending before the Wisconsin Supreme Court concerning interpretation of the state’s marriage amendment is decided, and to “abstain” from ruling in this case because the relief requested by the plaintiffs — injunctions against three county clerks – “would disrupt the state’s important interest in the uniform and coherent administration of state marriage laws.” The three county clerks are also defendants in the case, but they actually side with the plaintiffs on the merits.
After reviewing the grounds upon which a federal court might hesitate to decide a case concerning the validity of state laws, Judge Crabb concluded that this is not such a case. Sometimes it is prudent for a federal court to hold its fire because the meaning of a state law is ambiguous and litigation pending in the state court system might clarify the meaning in a way that would resolve any federal constitutional review. The defendants argued that Appling v. Walker, the pending state supreme court case concerning whether the marriage amendment prevents the state from providing domestic partner benefits to state employees, might “materially alter” the federal constitutional analysis, but Judge Crabb rejected that argument. “The state defendants do not suggest that there is any uncertainty regarding whether the Wisconsin Constitution prohibits same-sex couples such as plaintiffs from marrying in Wisconsin,” she wrote. “That is obvious from the language of the amendment. Further, defendants acknowledge that Appling v. Walker will not ‘obviate the need for a federal constitutional ruling’ in this case. As made clear by the Wisconsin Court of Appeals, Appling ‘is not about whether the Wisconsin or United States Constitutions require, on equal protection or other grounds, that same-sex couples have the right to a legally recognized relationship that is identical or substantially similar to marriage.” Rather, Appling is concerned with whether the simple extension of partner benefits to state employees creates such a “legally recognized relationship” and thus is barred by the Wisconsin Marriage Amendment. The answer to that question is basically irrelevant to the question pending before Judge Crabb.
“As plaintiffs point out,” she wrote, “if the Wisconsin Supreme Court upholds the domestic partnership law, nothing changes. If the court invalidates the law, the only effect is to make the deprivation imposed on plaintiffs [by the Marriage Amendment] more severe. Thus, it is difficult to envision any scenario in which the state defendants could rely on the supreme court’s decision to strengthen their position.” Thus they failed to show that “exceptional circumstances” would justify delaying the case in order to wait for the Wisconsin Supreme Court’s decision.
On the abstention point, the defendants argued that because the plaintiffs had not certified a class action, the court’s ruling in their favor would be binding only on the three clerks named in the complaint. As none of the other named defendants are responsible for issuing marriage licenses, say the defendants, the result would be a lapse in the “uniform and coherent administration” of Wisconsin’s marriage laws because same-sex couples would be able to marry in some counties but not others, since none of the other state defendants had any authority under state law to “direct the actions of Wisconsin’s county clerks with regard to the issuance of marriage licenses.” They urged the court to “take steps to address the uniformity concern they have raised.”
The three county clerks who are defendants in the case apparently sympathize with the plaintiffs on this point, as they submitted to the court that it was likely that if the court ruled in favor the plaintiffs, county clerks around the state would comply with any orders that were issued in the case, since the state registrar, who is a defendant, “establishes the form for marriage licenses that clerks must use.” Indeed, Crabb found that the defendants had, in effect, conceded that abstention was not appropriate on this constitutional question, and she rejected the idea that it was necessary to join all the county clerks in Wisconsin as defendants to resolve this “problem.” She pointed out that since the plaintiff couples in the case were not seeking marriage licenses from any of the other clerks, they would lack standing to sue the other clerks in federal court. “In any event,” Crabb wrote, “the state defendants do not suggest that a judgment in plaintiffs’ favor would subject any existing party to inconsistent obligations.”
She criticized the defendants for “seeking to place an extraordinary burden on plaintiffs without any authority for doing so,” essentially asking the court to require them to “forfeit their case” unless they can round up same-sex couples from every county in the state to join as plaintiffs or “replead their case as a class action.” But, she concluded, plaintiffs have a right to bring a lawsuit to vindicate their own constitutional rights, suing the officials who have refused to issue them marriage licenses. “Thus, even if I assume that state defendants are correct that the judgment in this case would not bind nonparty county clerks,” she wrote, “I see no legal grounds for granting the state defendants’ request.”
The plaintiffs are represented by lawyers from the ACLU’s LGBT Rights Project and the ACLU of Wisconsin, with cooperating attorneys from Mayer Brown LLP’s Chicago office. Judge Crabb is a Senior District Judge who was appointed by President Jimmy Carter in 1979 and served as Chief Judge of the district from 1980 to 1996. She took senior status in 2010. From her rulings in the case so far, it sounds like she is thoroughly enjoying presiding over this litigation, and there seems little doubt how she is likely to rule on the summary judgment motion, which is why the state defendants are doing everything they can to try to delay things as long as possible. But Judge Crabb is having none of that!