Balkinization  

Friday, June 15, 2012

Update on Illinois Marriage Equality Act: State's Attorney Agrees that Illinois Marriage Ban Violates Illinois Constitution

Linda McClain

Just a quick update on what is evidently an unprecedented development in the two lawsuits recently filed by twenty five same-sex couples in Illinois. Those lawsuits (about which I wrote on June 5) alleged that the Illinois Marriage and Dissolution Act, which bars them from marrying, violates the Illinois Constitution. From the outset, a striking feature of those suits was that the nominal defendant, the Cook County Clerk, David Orr, sued for declining to issue the couples marriage licenses, immediately expressed his support for them. So did the Attorney General.

Yesterday, the public official to whom it would ordinarily fall to defend Illinois’s marriage law in the lawsuits – Cook County State’s Attorney, Anita Alvarez – indicated in a court filing that the State’s Attorney supported plaintiffs’ suits. I have not seen the actual filing, but a spokesperson told the press: "We believe the plaintiffs are correct in their assertion that the Illinois Constitution upholds marriage equality for same sex couples just as it does for opposite sex couples." Alvarez acknowledged her position was "unusual," but stated: "We do believe the equal protection clause of the Illinois Constitution is just that. It protects everybody equally." Her office also filed a response on behalf of Orr, stating that the clerk "admits the inequity and tangible harm done to same-sex couples who are denied access to civil marriage licenses." The State’s Attorney’s position reportedly came after several days of deliberation and a unanimous conclusion by her staff that the state’s marriage ban violated the Illinois constitution’s equal protection clause.

Normally, the Attorney General’s office would be next in line to defend against the lawsuits. However, as I noted in my earlier post, the AG already indicated that it would seek to intervene in order to "present the Court with arguments that explain why the challenged statutory provisions do not satisfy the guarantee of equality under the Illinois Constitution." In other words, the AG – like the defendant and the State’s Attorney – agrees with the plaintiffs’ claims!

So who will defend the law, if the state’s own representatives will not? The Chicago-based Thomas More Society, which describes itself as a "not-for-profit, national public interest law firm that exists to restore respect in law for life, marriage, and religious liberty," is reportedly preparing legal papers to seek to be allowed to defend the ban in court. It is hard to see a persuasive argument for allowing this law firm to defend a state law that public officials ordinarily charged with its defense instead agree is unconstitutional. No doubt the Society will make arguments about giving "the people" of Illinois a chance to be heard on the issue and about how the public officials have somehow overlooked and failed to articulate Illinois’s vital interests in excluding same-sex couples from marriage, even though it allows them to enter into civil unions. Will they find any support in the precedent of the Prop 8 proponents defending Prop 8 when the State of California declined to do so? It will be interesting to see what happens next.

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