Same-sex marriage being performed in Madison.
Many of Wisconsin’s county clerks issued same sex marriage licenses for a week, and could be charged by local district attorneys for violating the law.
Attorney General J.B. Van Hollen said last week the ban on gay marriages is still on the books and clerks could face charges, but his office won’t be charging them. Van Hollen says local district attorneys could prosecute if they were inclined to do so.
Portage County District Attorney Louis Molepske, Jr. won’t have this problem, since Clerk Shirley Simonis did not issue any same sex marriage licenses. He does say that even if she did, he would not prosecute the clerk.
Molepske says there is no prosecutorial merit in charging the county clerks. “Ultimately, as I’ve said before on this, the clerk determines who or who shall not get a marriage license, and I think that is something that is very important, and I don’t think that the Attorney General should be, frankly, sticking his nose in an area that it doesn’t belong, especially when we have very competent clerks in the state.”
Molepske says he doesn’t see where any local prosecutor will pursue the county clerks. “I would be shocked if a DA prosecuted his or her clerk in the county for issuing a marriage license, because there has to be intent to violate the law such that the class A misdemeanor would apply.”
Molepske says prosecuting clerks would create additional problems at the circuit court level. “It would create havoc throughout the state, and again that’s why I’m disappointed that our Attorney General in this state would basically infer or recommend that charges could be brought or should be brought, because it would create havoc. Special prosecutors would have to be brought in. Reserve judges would have to be brought in. It really makes no sense.”
Molepske says they have much more important cases to handle. “We have much more serious cases to look at and to prosecute, and again, we have elected officials in these positions who have to make competent for themselves and their constituents on these issues, and it’s up to them. It’s not up to the Attorney General.”
Judge Barbara Crabb has ruled that Wisconsin’s state constitutional ban of same sex marriage violates the U.S. Constitution’s equal protections law. Friday, Crabb did issue a stay on that ruling Friday to allow the state time to appeal her decision.