Meanwhile, same-sex couples in counties that weren't issuing licenses said they felt disadvantaged given Wisconsin's requirement that residents who wish to wed apply in the counties where they live.
Hundreds of gay couples have married since U.S. District Judge Barbara Crabb overturned the ban on Friday. At least 353 licenses have been issued in Milwaukee and Madison, the two cities where most ceremonies are taking place. By Tuesday, 49 county clerks said they would issue licenses to couples that wanted them. Some also were waiving the state's five-day waiting period so the couples could marry before an expected hold is placed on Crabb's decision.
Other county clerks said they still wanted more definite direction from Crabb or the state. The judge caused confusion by declaring the ban unconstitutional but not providing an order telling the state how to implement her decision. She is mulling whether to adopt a proposed order from the American Civil Liberties union that would force clerks to issue licenses. The ACLU sued in January on behalf of eight couples.
Meanwhile, Republican Attorney General J.B. Van Hollen has appealed Crabb's decision and asked the 7th U.S. Circuit Court of Appeals to order that licenses stop being issued. That court has given Van Hollen and the ACLU until 5 p.m. Wednesday for motions on whether it has the authority to act before Crabb does.
Patrick Bacher, 47, of Wausau, tried to get a license to marry his partner Monday in Marathon County but left "crestfallen" after being told Crabb's order wasn't complete and the county clerk's office was waiting for directions from the Wisconsin Vital Records Office, which records marriages. The office had said previously it wouldn't act without direction from Van Hollen.
"We just want to be treated like everybody else," Bacher said, adding that he and his friends have been calling clerks who aren't issuing licenses and demanding to know why.
A few clerks said they decided to accept applications after county attorneys left the matter in their hands. Eau Claire County Clerk Janet Loomis and Trempealeau County Clerk Paul Syverson, both Democrats, said they looked to Dane County, where the state capital, Madison, is located, and others before deciding to move ahead.
"I would have never done it if I was the only one," Loomis said. But after reading legal opinions from county attorneys and watching her peers, "I just feel that there's enough stuff out, that it doesn't give me justification to say no to it," she said.
Other clerks said they felt they were getting mixed messages and wanted to wait for clear-cut guidance.
"You have the attorney general who gives you a direction, and a court that gives you another direction," said Green Lake County Clerk Margaret Bostelmann, a Republican. She added, "I just want to do the right thing."
Republicans outnumber Democrats by more than 2-to-1 among the 23 clerks not issuing licenses. Several said they were swayed by Van Hollen's opinion that the gay marriage ban was in effect until Crabb issues an order blocking it. They also said politics did not play a role.
"It's unfortunate ... that Judge Crabb has put clerks and, more so, couples, in a difficult situation," said Waushara County Clerk Melanie Stake, a Republican. "The legalities of their marriages can be in question for months or years. County clerks are really struggling. We like to be uniform and we haven't had the tools to be able to do that."
Many said their county attorneys advised them to wait. Nathan Russell, the attorney for Lafayette County, said he told Clerk Linda Bawden not to issue licenses during this "gray period" because he worried she would be sued or face criminal penalties.
"We're not taking a political stand whatsoever, we're just trying to protect the clerk from issuing invalid licenses," Russell said. "We'll happily do it once we know we can."
Kewaunee County Clerk Jamie Annoye, a Democrat, said she also took her cue from Van Hollen because she wasn't sure what the Vital Records Office would do.
"I just can't see taking a couple's money with no guarantees that that document is going to be filed," she said.