MADISON (AP) - Wisconsin Attorney General J.B. Van Hollen warned county clerks Thursday that prosecutors could charge them for issuing marriage licenses to same-sex couples, saying the state's gay marriage ban remains in effect despite a federal judge's ruling that it's unconstitutional.
Van Hollen, a Republican, told the Milwaukee Journal Sentinel newspaper that gay couples who have married since U.S. District Judge Barbara Crabb issued her ruling last week aren't legally married and district attorneys could opt to charge county clerks who issued them licenses with a crime.
"That's going to be up to district attorneys, not me," Van Hollen said. "There are penalties within our marriage code, within our statues, and hopefully they're acting with full awareness of what's contained therein. ... You do have many people in Wisconsin basically taking the law into their own hands, and there can be legal repercussions for that."
Clerks began issuing licenses June 6, hours after Crabb's ruling came out. As of Thursday, 60 of the state's 72 counties were issuing licenses.
But confusion has swirled about what clerks can legally do. Crabb declared the ban unconstitutional but did not issue any orders telling clerks to issue licenses. Van Hollen maintains that without such an order the ban remains in place.
Crabb currently is considering a proposed order from the American Civil Liberties Union that calls for clerks to issue same-sex licenses, but she hasn't issued anything formal yet. Van Hollen, meanwhile, has asked both Crabb and the 7th Circuit Court of Appeals to halt the marriages pending an appeal of the constitutionality ruling.
Dane County, the most liberal county in the state, began issuing licenses within hours of Crabb's June 6 decision. Clerk Scott McDonell called Van Hollen's warning that prosecutors could charge clerks "ridiculous."
"There has to be (criminal) intent. If a reasonable person can read that the judge clearly invalidated the state ban on same-sex marriage, what would be the charge?" he said.
Janine Geske, a Marquette University law professor and a former Wisconsin Supreme Court justice, said charging county clerks would be impractical and expensive. For example, since district attorneys, clerks and judges in a county likely all know each other, district attorneys would have to call in special prosecutors and judges from outside the county to avoid an appearance of a conflict of interest, she said.
Van Hollen, a Republican, told the Milwaukee Journal Sentinel newspaper that gay couples who have married since U.S. District Judge Barbara Crabb issued her ruling last week aren't legally married and district attorneys could opt to charge county clerks who issued them licenses with a crime.
"That's going to be up to district attorneys, not me," Van Hollen said. "There are penalties within our marriage code, within our statues, and hopefully they're acting with full awareness of what's contained therein. ... You do have many people in Wisconsin basically taking the law into their own hands, and there can be legal repercussions for that."
Clerks began issuing licenses June 6, hours after Crabb's ruling came out. As of Thursday, 60 of the state's 72 counties were issuing licenses.
But confusion has swirled about what clerks can legally do. Crabb declared the ban unconstitutional but did not issue any orders telling clerks to issue licenses. Van Hollen maintains that without such an order the ban remains in place.
Crabb currently is considering a proposed order from the American Civil Liberties Union that calls for clerks to issue same-sex licenses, but she hasn't issued anything formal yet. Van Hollen, meanwhile, has asked both Crabb and the 7th Circuit Court of Appeals to halt the marriages pending an appeal of the constitutionality ruling.
Dane County, the most liberal county in the state, began issuing licenses within hours of Crabb's June 6 decision. Clerk Scott McDonell called Van Hollen's warning that prosecutors could charge clerks "ridiculous."
"There has to be (criminal) intent. If a reasonable person can read that the judge clearly invalidated the state ban on same-sex marriage, what would be the charge?" he said.
Janine Geske, a Marquette University law professor and a former Wisconsin Supreme Court justice, said charging county clerks would be impractical and expensive. For example, since district attorneys, clerks and judges in a county likely all know each other, district attorneys would have to call in special prosecutors and judges from outside the county to avoid an appearance of a conflict of interest, she said.