Shhhh! Scott Walker is evolving...

... on gay marriage.

ADDED: Barbara Crabb, federal district judge who issued the decision in favor of same-sex marriage last week without issuing an injunction or saying whether or not it would be stayed has now come out with the injunction and has stayed it. Judge Crabb's opinion expresses the kind of empathy that some people like to see as part of judging and some find quite inappropriate:

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 [v. Kitchen, 134 S. Ct. 893 (2014)], I conclude that I must stay any injunctive relief pending appeal.

Judge Crabb herself is responsible for this week-long interlude of joyful expressions, so there's something off about her vicarious joy at the situation she set up, and it's strange for her to tell us about her emotional engagement with the results of her doing what she has power to do only because it is her duty under the law. But in the end, she admits that she's bound by the law, by what the Supreme Court did in Herbert, and she follows it, and yet this doing of her duty is embroidered with regret. She'd prefer to make people happy (that is to say, to make the people who make her happy happy), and I don't think that sort of emoting belongs in the opinion (and by "the opinion," I mean the written opinion and the decision-making that goes on in the judicial mind outside of our scrutiny).

Now, back to Walker. I see where he's going. He's a party to this case, enjoined "to treat same-sex couples the same as different sex couples in the context of processing a marriage license or determining the rights, protections, obligations or benefits of marriage" (PDF). This is, for him, a gift. He can be modest and humble and say he'll do exactly that. It would suit his style, and it would free him from the burden of having an independent opinion on this divisive issue.

As he said yesterday: "It really doesn't matter what I think now.... It's in the constitution."

At this point, for him, and for other traditionalists who've fought marriage equality over the last few years, that's the place to be right now. That's as close to perfect as you're going to get.

Now, move on to the matters that properly belong to government.

"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.

"U.S. District Judge Barbara Crabb in Madison Friday overturned Wisconsin's gay marriage ban..."

"... striking down an amendment to the state constitution approved overwhelmingly by voters in 2006 and prompting joyous weddings on a street outside the Dane County clerk's office."

Crabb did not stay her ruling but also did not immediately issue an order blocking the enforcement of the ban, sparking a heated and hasty debate among lawyers on whether the ruling meant that couples could immediately marry in the courthouses of Wisconsin.

The Freedom From Religion Foundation lacks standing to challenge the President's proclamation of a "national day of prayer."

And so, probably, does everyone else, says the 7th Circuit Court of Appeals (PDF). A "feeling of exclusion" or "alienation" is not the "injury in fact" required by Article III of the Constitution. The panel distinguished cases involving a religious display that induced plaintiffs to What did provide standing, we held, is that the plaintiffs "alter[] their daily commute...incurring costs in both time and money."

We talked about this case a year ago when the district judge, Barbara Crabb (here in Madison) issued an injunction barring the proclamation, saying "the government has taken sides on a matter that must be left to individual conscience." The new decision doesn't reach the merits of the case; standing is a threshold issue. But you can tell what the court thought of the Establishment Clause question:

A President frequently calls on citizens to do things that they prefer not to do—to which, indeed, they may be strongly opposed on political or religious grounds.... [No] (sensible) person [would]  suppose that a court could take a blue pencil to a President’s inaugural address or State of the Union speech and remove statements that may offend some members of the audience. President Lincoln’s second inaugural address, likely the greatest speech ever made by an American President, mentions God seven times and prayer three times, including the sentence: “Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away.” The address is chiseled in stone at the Lincoln Memorial on the National Mall. An argument that the prominence of these words injures every citizen, and that the Judicial Branch could order them to be blotted out, would be dismissed as preposterous.

The Judicial Branch does not censor a President’s speech....

By proclaiming a National Day of Prayer, "the government has taken sides on a matter that must be left to individual conscience."

So wrote Wisconsin's own Barbara Crabb, in a lawsuit brought by Madison's own Freedom From Religion Foundation.

But the injunction won't go into effect unless the ruling is upheld on appeal, which is, I think, unlikely. Meanwhile, the nefarious violator of the Establishment Clause is none other than our friendly President, Barack Obama, who says:

"I call upon the citizens of our nation to pray, or otherwise give thanks, in accordance with their own faiths and consciences, for our many freedoms and blessings, and I invite all people of faith to join me in asking for God's continued guidance, grace, and protection as we meet the challenges before us."

It's that special day when the President pushes you to pray... or otherwise give thanks... depending on how you feel about these things.

There, now, has anyone been made to feel "that they are outsiders, not full members of the political community"?

"We have a constitutional scholar in the White House who is disregarding the secular underpinnings of our government."

Said Annie Laurie Gaylor, co-president of Freedom From Religion Foundation, which sued President Obama (and others) over the annual proclamation of a National Day of Prayer. Judge Barbara Crabb, here in the Western District of Wisconsin, agreed with the Foundation that there's a violation of the Establishment Clause. Obama will appeal that decision. So, it's Obama, pro-prayer. Are you surprised? (I'm not!)

The end of the constitutional challenge to Wisconsin's diploma privilege.

The case was settled with a $7500 payment to the plaintiff. Back in December, the judge — Barbara Crabb — decertified what had been a class action (including all the graduates of out-of-state law schools who sought to practice law in Wisconsin and were required, under state law, to take a bar exam when the graduates of Wisconsin law schools — the University of Wisconsin and Marquette — had a "diploma privilege" to skip the exam).

Booker, who won in the Supreme Court, gets the same 30-year sentence.

"Too old to become involved in criminal activity? Not on your life, counselor. He'll never be too old," said Judge Shabaz as he handed Freddie Joe Booker the same 30-year sentence he gave him back before Booker fought his way to a victory in the U.S. Supreme Court last January. The Court found a Sixth Amendment problem with the Federal Sentencing Guidelines that led it to reframe the Guidelines as discretionary rather than mandatory. It remains to be seen how much the Booker decision will change things at ground level:

Assistant U.S. Attorney John Vaudreuil said the Booker decision hasn't caused more defendants in this federal district to choose trials over pleas because both Judge Barbara Crabb and Shabaz continue follow the guidelines.

"I can only speak to what's happening here, but our judges look at the guidelines and have largely determined them to be appropriate...Both (judges) have made it clear that one of the goals of following the guidelines is to keep a uniform approach to sentencing cases across the country," Vaudreuil said.