Wis. AG: Clerks Issuing Licenses to Same-Sex Couples Risk Prosecution

Same-sex couples aren't married in the eyes of the law, and county clerks issuing them licensing could risk prosecution, said Wisconsin Attorney General J.B. Van Hollen Thursday.

"You do have many people in Wisconsin basically taking the law into their own hands and there can be legal repercussions for that," Van Hollen told the Milwaukee Wisconsin Journal Sentinel. "So, depending on who believes they're married under the law and who doesn't believe they're married under the law may cause them to get themselves in some legal problems that I think are going to take years for them and the courts to work out."

Van Hollen said that he was only doing his job by defending the state's same-sex marriage ban, and that he would be proud of a legacy of fighting for the rule of law when he retires this fall. He noted that he did not believe the couples would be prosecuted but said that, under state law, county clerks can be jailed for up to nine months and fined up to $10,000 for issuing marriage licenses that aren't allowed.

"That's going to be up to district attorneys, not me," he said. "There are penalties within our marriage code, within our statutes, and hopefully they're acting with full awareness of what's contained therein."

Dane County Clerk Scott McDonell, the first clerk to issues marriage licenses to same-sex couples in Wisconsin, said the possibility of prosecution "doesn't keep me up at night. He needs to call off the dogs and turn off the fire hoses."

And in a recent update, Bilreco reports that Wisconsin attorney and LGBT equality advocate Tamara Packard accused Van Hollen of willfully distorting the truth in order to justify anti-LGBT animus.

"To those reading the latest statement from the Attorney General: he has always worked to defeat marriage equality. He is not a reliable source of information," wrote Packard. "The [Wisconsin] statutes have penalties for a clerk 'who knowingly issues a marriage license contrary to or in violation of' the Wisconsin statutes governing marriage."

"The statutes that limit licenses to [heterosexual] couples have been declared unconstitutional," she continued. "That means they are null and void. The clerks issuing these licenses are doing so in conformance with the law. And even if we lived in JB's fantasy world where those unconstitutional statutes are still 'in effect,' the clerks legitimately believe them not to be, and thus are not 'knowingly' doing anything unauthorized."