Frederica Freyberg:

I’m Frederica Freyberg. Tonight on “Here and Now,” US district court judge Barbara Crabb rules late this afternoon that county clerks must not deny issuing marriage licenses to same-sex couples, but puts that on hold, allowing the federal appeals court to take up the matter. Former state Supreme Court justice Janine Geske is here with analysis. The Waukesha County clerk talks about her experiences this week issuing same-sex marriage licenses. Later, an interview with the Democratic primary challenger to Congresswoman Gwen Moore, former senator Gary George. And a Madison veterans hospital answers to wait time for patient care.

But first, this afternoon at the Madison federal courthouse Judge Barbara Crabb ruled Wisconsin must issue marriage licenses to same-sex couples, but that as of late this afternoon the issuance of them is put on hold until after the conclusion of any appeals. Judge Crabb writing, 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, she says, 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, she says, to follow the guidance provided by the Supreme Court. I conclude that I must stay any injunctive relief pending appeal. We turn now to former state Supreme Court justice, Janine Geske, for analysis. She joins us in Milwaukee. Justice, thanks very much for doing so.

Janine Geske:

You’re welcome.

Frederica Freyberg:

Was this about what you expected from Judge Crabb?

Janine Geske:

Well, I’m not surprised that these were her decisions. Judge Crabb is known for her meticulous opinions. She writes very clearly, but she also is a judge who’s not often reversed on appeal. And because of what happened in Utah, which had a similar case, and because the US Supreme Court entered a stay in that case, she felt that she was compelled to do it here because if she didn’t do it, the court of appeals or the US Supreme Court would do it. And I think she really wanted the appeal to move on, and hopefully she thinks that her case– her decision, ultimately will be affirmed.

Frederica Freyberg:

From a legal perspective, how interesting, and really maybe even how momentous, are the turns of events in this case here in Wisconsin?

Janine Geske:

Well, there are a number of things that are interesting. Obviously, the finding by a district– a well-respected district judge that a provision of the Wisconsin constitution is unconstitutional under the federal constitution, that’s not something that we have happen in this state. It obviously is a huge decision affecting many same-sex couples and other– and others who care deeply about this issue on both sides. What was interesting about Judge Crabb’s decision, and difficult from other jurisdictions, was that she bifurcated it. She decided the initial part, which allowed the couples to get married over the last week or so, before she issued the rest of the decision, which happened today, granting the injunction and then staying it so that the case can move on to appeal.

Frederica Freyberg:

So that was her intent, you believe, in this bifurcated, as you called it, kind of ruling, to allow these hundreds of same-sex couples to run out and get married before she stayed it.

Janine Geske:

Well, we’ll never know what her intent was because that’s what she did. That was different than other states. You know, I’m sure she would tell you, in part, that she wanted to consider it, but she did issue that first part of opinion and then wait for the second part. So, you know, particularly in reading the opinion she wrote today, how strongly she feels about that issue, we can infer what her intent was, but, you know, there’s nothing in the record that says why she did it.

Frederica Freyberg:

Well, it does lead one to wonder also whether or not she actually then gave same-sex couples the rest of the afternoon, today, on Friday, to rush out should they so please, to get their marriage licenses.

Janine Geske:

Well, you know, I mean, as I said, there’s no other jurisdiction that I know that when the federal judge– And most jurisdictions have reached the same decision she has in the federal courts, that these provisions are unconstitutional. But almost all of them either granted the stay or denied the stay at the same time. And she did what the decision– In fact, she was going to let it go I think until June 19, and then decided to move it up to this afternoon.

Frederica Freyberg:

Given that kind of unique decision-making on her part, what kind of legal ground do you think those county clerks stand on granting these licenses in this kind of open week, before today’s ruling?

Janine Geske:

Well, I think– You know, I think the county clerks were doing what they thought was appropriate under her decision. I know that the attorney general made his comments yesterday about prosecuting them. I believe he was just frustrated with not getting the stay that he thought he was entitled to, and unfortunately took it out on those clerks. I don’t think those clerks are in trouble whatsoever. I think they did what they believed legally was responsible, and those that chose not to did it as well. You know, the validity of those marriages will probably have to be litigated later on, and it might depend in part where the case goes. But I think the clerks did, you know, what they thought was appropriate, frequently with the advice of their local corporation counsels in their counties.

Frederica Freyberg:

So the federal appeals court has this Wisconsin case now or is soon to, and, as you say, similar cases in other states are also before appeals courts. How in your mind does this ultimately resolve, given all of these cases that we’ve seen?

Janine Geske:

Well, yeah. I mean, I’m as confident as I can be that it is going to have to be resolved by the United States Supreme Court. The case most similarly situated to ours is the state of Utah. Judge Crabb refers the that. The district court found their constitution unconstitutional under the US constitution. And in that case the district court did not issue a stay and the 10th circuit did not issue a stay, and the US Supreme Court actually stepped in and stayed everything. And that’s why she felt compelled to enter the stay today. That circuit court, which is a number of months ahead of ours, expedited the appeal and they had oral arguments a few months ago. I suspect that decision will come out any day, and there’s no doubt in my mind that whoever loses that decision will appeal to the Supreme Court. The US Supreme Court could just take that case and put other cases on hold, or it could consolidate them. But I think ultimately it will be the United States Supreme Court making that decision. And, you know, I think it’s hard to predict at this point. I am pretty confident it will be a 5-4 decision, but where it will go, I don’t know.

Frederica Freyberg:

All right. Former Supreme Court justice Janine Geske, thanks very much for your analysis on this with us.

Janine Geske:

You’re welcome.