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.
A conviction would be difficult to win since clerks could argue Crabb's decision is unclear and they're interpreting it as best they can, she said. It's not as if clerks are completely ignoring the basic requirements for marriage licenses, such as a birth certificate, she said.
"This isn't a case where county clerks should be prosecuted," Geske said. "The attorney general is totally frustrated and unfortunately he took his frustration out on county clerks. I hope he regrets making the statement. He bullied the county clerks."
Van Hollen isn't seeking re-election this fall. Four candidates are vying to replace him, including Waukesha County District Attorney Brad Schimel, a Republican, and Democrats Ismael Ozanne, the Dane County district attorney, Susan Happ, the Jefferson County district attorney, and state Rep. Jon Richards of Milwaukee.
Clerks in all those counties are issuing licenses. Happ said in an email to The Associated Press that she doesn't think any district attorney could justify charges.
Richards' campaign spokesman, Sachin Chheda, called the attorney general's stance "outrageous."
"There's no need to insert DAs into this process," Chheda said. "He can't win in federal court so he's threatening clerks. That's the wrong thing to do."
Ozanne chuckled when asked what he thought of Van Hollen's warning.
"J.B. Van Hollen just seems not to be able to let this go," he said. "The clerks are doing what they should. This ban has been ruled unconstitutional."
Speaking as Waukesha County district attorney, Schimel said "it's not possible" for him to issue charges against the clerk in his county, who consulted with the county's lawyer before issuing licenses. The clerk is in an "untenable position no matter which way she acts," Schimel said, because she could face misconduct in office charges for failing to perform lawful duties if she doesn't issue licenses.