Clerks frustrated with state inaction on same-sex marriage license direction

Bob Archer and Allen Borgwardt sit and wait for a marriage license on Tuesday, June 10, 2014 in Winnebago County. It is one of 23 counties choosing to wait for clarification from the state on issuing licenses for same-sex couples in the state.

Update: Story now includes response from state records office and attorney general's office.

OSHKOSH – Marriage licenses for same-sex couples continue to be issued in the state. But you can’t get them everywhere.

By Tuesday, 49 of Wisconsin’s 72 counties were taking marriage license applications, with some clerks waiving the five-day waiting period; however 23 counties are not. They’re choosing to wait for clarification on a federal judge’s Friday ruling that struck down Wisconsin’s ban on gay marriage.

One of the counties waiting is Winnebago.

“We live in the wrong county right now,” said Allen Borgwardt, standing next to his partner, Bob Archer. “And had we lived in another county, we could be married by now.”

Borgwardt and Archer – both of Neenah – are asking the Winnebago County clerk every hour for a marriage license. Every time, they’re denied.

Ironically, the couple of 21 years became domestic partners in the very same room in October 2009.

“I believe we were couple 55,” said Borgwardt.

The two aren’t angry with the county clerk, but left wondering what the county’s decision to wait means for their marriage hopes.

“I guess I’m a little bit frustrated as to why I’m being told that I’m less than someone else,” said Archer.

“Is this a personal decision for you?” FOX 11’s Bill Miston asked Winnebago County Clerk Sue Ertmer.

“Of course not. No, no,” Ertmer quickly responded. “We’re agents of the state. We can only do things when the state directs us.”

According to a spokeswoman of the state office that handles marriage licenses, the agency is holding, but not processing, same-sex marriage licenses of couples who married after a federal judge overturned the state's same-sex marriage ban.

So, until that happens, Ertmer says she’s following the county lawyer’s guidance to not issue licenses.

The Wisconsin Vital Records Office says it hasn't received guidance from Wisconsin Attorney General J. B. Van Hollen on what to do with the licenses, but says it will “fulfill all administrative duties required with regard to registering vital records. Once there is an ultimate decision made on this issue, the responsibility will be on individuals to make any necessary changes to their record,” according to a statement emailed to FOX 11.

Hundreds of gay couples have married since U.S. District Judge Barbara Crabb overturned the ban.

Van Hollen is appealing the decision and has said the ban remains in force. But spokeswoman Jennifer Miller says Van Hollen hasn't told the state records office how it should handle licenses.

Van Hollen's spokeswoman, Dana Brueck, said in a statement that the attorney general's office has contacted Vital Records, but she wouldn't say what, if any, advice was given.

“It’s put us in a very precarious position,” said a frustrated Ertmer. “And I empathize completely with the people that are coming in.”

Ertmer and other clerks say their frustrations stem from the state level. Particularly with state officials’ statements that contradict their own interpretation of the ruling striking down Wisconsin’s gay marriage ban.

“Press releases coming out from [Wisconsin Attorney General J.B. Van Hollen’s] office that says, well nothing’s changed,” said Brown County Clerk Sandy Juno. “Then you have a federal judge giving an order that it’s unconstitutional to have the ban.”

Juno says she stands by the county lawyer’s decision to allow same-sex couples a marriage license. This as Wisconsin’s attorney general is seeking a court order stopping them.

“Nobody’s come forth to say, ‘this is our position as a state,’” Juno said.