June 9, 2014

"Gay couples across Wisconsin rushed to wed Monday, as more than half of the counties in the state began issuing licenses ahead of an expected hold..."

"... on a ruling that the state's same-sex marriage ban is unconstitutional."
U.S. District Judge Barbara Crabb in Madison struck down the ban Friday in an American Civil Liberties Union lawsuit challenging the prohibition. But she didn't order county clerks to begin issuing licenses or block them from handing them out. She said she wants the ACLU to draft an order for her spelling out how the organization wants her decision implemented.


Her stance has left county clerks to decide on their own whether they can legally issue licenses to same-sex couples. Clerks in Milwaukee and Madison, the state's liberal hubs, began issuing licenses to same-sex couples within hours of the ruling....

[Judge] Crabb refused Republican Attorney General J.B. Van Hollen's request for an emergency order halting the marriages.... Van Hollen also appealed Crabb's decision to the 7th Circuit Court of Appeals and asked it to stop the ceremonies.

"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.
It's one thing for a court to see and declare the existence of rights. That, in itself, is destabilizing, but normal in our system, where individual rights trump majoritarian choices. It's something else entirely for a judge to create this kind of confusion.

28 comments:

Harold said...

"She said she wants the ACLU to draft an order for her spelling out how the organization wants her decision implemented."

Let me translate- "She made her decision up out of whole cloth, and wants the ACLU to write up the justification, becasue she can't figure it out."

Seems as good a translation as any.

Terry said...

One person has decided to overrule the democratic voice of the people, properly enacted into law. The left cheers. Typical.

Scott said...

A question for you.

Is it normal for a judge to request that the ACLU to write the rules governing her decision versus her clerks or another legal authority?

Bill, Republic of Texas said...

A Carter appointee. This is my shocked face.

Jason said...

It's an inevitable consequence of libtards pushing this garbage through the courts, instead of through the deliberative processes of the legislature.

Judges are simply incompetent at managing complex systems, where at least the legislature will theoretically have to deal with multi-directional input from many different interest groups and constituencies, including those who will be negatively affected trying to make this work, as part of the legislative process.

The courts are "FIRE. READY. AIM."

Bob said...

Typo: "It's something else entirely for a judge to this kind of confusion."

Tank said...

It's normal for a judge to issue a decision and ask the prevailing party's lawyer to draft a proposed order.

Michael K said...

This certainly seems a very important issue for you, Althouse.

Ann Althouse said...

Thanks, Bob. I inserted the missing word.

Ann Althouse said...

"Is it normal for a judge…"

Unfortunately, it is normal for parties to participate in the drafting of orders. The judge makes the final call, of course.

CWJ said...

Yeah Althouse, have at it. Square that circle. It will I'm sure provide you with grist for class discussion. But for the rest of us, it's yet another example of keep your head down and hope you're not noticed, because who knows what the law may be Tuesday.

Anonymous said...

What comes around goes around.

dcm said...

Judges always ask the prevailing party to draft an order. Well, almost always. The other side gets a copy and has a right to object. Stop being partisan idiots.

holdfast said...

It's bad enough being dictated to by a brilliant but out of touch jurist. This is the dictatorship of the dummy judge who can't even draft a decision and order.

Why not save on her salary and just outsource everything to the ACLU?

Jason said...

Unfortunately? So we want to hard-wire judicial incompetence in any orders?

Seriously - law school graduates seem to be supremely arrogant in their estimation of their own ability and circle of expertise.

LuAnn Zieman said...

“Wisconsin state law defines marriage between a husband and a wife. I think everybody with a third grade education or higher understands that a husband is a man and a wife is a woman. And we’ve had numerous courts in Wisconsin interpret that to mean a man and a woman, husband and a wife. We’ve had two consecutive attorneys general do that. Uh, there was an attempt to pass statutory legislation that Governor Doyle vetoed because he said this is just unnecessary, it’s redundant. Um, I think there hasn’t been a big push, or really any push at all, for gay marriage or any sort of domestic partnership because, despite what you will hear from the other side, there is not some sort of rush, not some sort of big push, not some sort of big organization, that is trying to push for these things. These things are illegal today because of the will of the people deems them as such and nothing is going to change here.”

“No on the Amendment” campaign manager (and current Democratic Party Chairman) Mike Tate, in a debate with Julaine Appling, October 2, 2006

ALP said...

"...rush to wed..."

The only possible reason I can think of for rushing a financial decision like this would be if one half of the party was about to deploy abroad with the military.

Chuck said...

The level of purposeful irresponsibility on the part of these many District Court judges who all refuse and/or ignore the significance of staying their orders pending the inevitable appeal; it really calls into question the fundamental judicial state of mind which led to the decision(s) that there is a Fourteenth Amendment right to homosexual marriages.

In every single case, these temporary spasms of gay marriages (while the time was taken to go to the relevant U.S. Circuit Court of Appeals) simply sowed unnecessary confusion on the part of participants as a stay was the inevitable result.

Who knew that Saul Alinsky would find a home in U.S. District Courts?

Chuck said...

Professor Althouse;
Yes, it is normal -- routine, even -- for parties to draft orders which are then approved, signed and entered by the court. And it is also normal, in big motions/hearings/bench trials, for the court to enter its own "Opinion and Order" in which the court speaks through its own self-drafted order.

What is weird (but becoming increasingly common in the cases of homosexual marriage) is for these pro-gay marriage district judges to ignore requests from the several states that any order concerning the Constitutionality of state laws be stayed pending appeal. That is unusual, nonsensical and procedurally ugly.

So just as one might say that the ACLU could well be invited to submit a draft order to the court or to opposing counsel, a real court would also invite the state defendant to review and approve any order before it was entered.

This same ridiculous scenario played out recently in Michigan. Eastern District Judge Bernard Freidman issued his opinion and order (declaring as unconstitutional Michigan's popularly-enacted state constitutional amendment limiting marriage rights to one man/one woman) on a Friday at 4:45. That evening, four politically ambitious county clerks, all Democrats of course, announced that they would open their offices for unprecedented Saturday hours, with waivers of the usual waiting periods.

It was pure political theatre. And an offense to the rule of law. The Sixth Circuit issued a stay before the offices reopened on Monday.

Titus said...

You are so behind the times Wisconsin in a sort of backwards flyover state kind of way that I still love but had to flee.

So not coastal.

U know this happend in fab Mass 10 years ago and it like a totally mute point? We are now number 1 in start up venture capital money too so take that shit states.

tits.

Terry said...

I wonder what goes on in the mind of a judge who makes a decision like this. Surely she knows that matters of great interest to the polity are best left to the polity. Does she think "by what authority do I overrule the authority of the people who gave me the authority I have?"
Probably not.

broomhandle said...

Clearly not "mute".

southcentralpa said...

A very successful case of judge-shopping, then?

MadisonMan said...

Clearly not "mute".

Heh.

I'm sure there are same-sex couples marrying who have long yearned for the legal recognition. I'm happy for them to get what they want.

But I read in the paper and see others bewailing their feelings of second-classedness based on the Government refusing to bless their union (even though other organizations can and do bless it) and all I can do is shake my head and ponder why Governmental approval is so important for them. (If they were complaining about Tax benefits, or other such legal changes, that I understand. But feeling second-class?)

Similarly, I wonder if being legally married is a new accessory for some newly married couples, something they can brag about over coffee at Lazy Jane's? Why the big rush to do it? Maybe it's a cultural thing I won't understand because I'm so heteronormative.

Paco Wové said...

That's a great quote, LuAnn.

jr565 said...

THe more I think about gay marriage the more I'm mad at the process of achieving it than the actual achieving of it.

jr565 said...

If this were the state simply deciding they wanted gay marriage I'd be like "whatever". But the rationale posed by people demanding they get their way, is not based on any constitutional reading of the law that makes sense, and is anti democratic. And I can't stand for that whatever principle is being debated.
The left would not like judges changing the rules on abortion simply because the judge feels like it would they?
It's a power grab based on individual judges who are not beholden to the people, who think the can tell society how to function simply because that's how they feel about something.

Anglelyne said...

LuAnn Zieman @9:02pm quotes Mike Tate from 2 October 2006:

“Wisconsin state law defines marriage between a husband and a wife. I think everybody with a third grade education or higher understands that a husband is a man and a wife is a woman. And we’ve had numerous courts in Wisconsin interpret that to mean a man and a woman, husband and a wife. We’ve had two consecutive attorneys general do that. Uh, there was an attempt to pass statutory legislation that Governor Doyle vetoed because he said this is just unnecessary, it’s redundant...

I guess he'd graduated to fourth grade by 6 June 2014:

Dem Party Chair Mike Tate said the ruling was especially important to him, given his work for Fair Wisconsin to try and defeat the ban when it was put on the ballot in 2006.

"I think that as we gather here today to talk about what we're going to be able to accomplish 151 days from now, giving Wisconsin a fresh start, this is really going to add fuel to the fire of why we need to keep working hard to make progressive change. Today's a historic ruling that we are going to treat our citizens the same as just about every other state in the Midwest does. That you love who you love and have that recognized by the government is huge."


Bask in the golden glow of honor and integrity.