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Illinois State's Attorneys Refuse To Defend State’s 16-Year-Old Same-Sex Marriage Ban

CHICAGO, IL -- Illinois Attorney General Lisa Madigan and Cook County State's Attorney Anita Alvarez have issued statements announcing that both officials and their staffs will refuse to defend Illinois's 16 year old ban on same-sex marriage. Both women say that the ban, which defines marriage as between a man and a woman, violates the state constitution's equal protection clause.

"I took an oath when I was sworn in to defend the constitution of the state of Illinois and I believe that's what I'm doing," Alvarez said in an interview with The Chicago Tribune. "I'm not going to defend something I believe is in violation of the constitution."

Lawsuits challenging the state's ban on same-sex marriage had been filed by The American Civil Liberties Union and New York-based Lambda Legal representing twenty-five Illinois couples who had applied for marriage licences against Cook County Clerk David Orr, whose office is responsible for issuing marriage licenses in the county, which includes the city of Chicago. Some of the couples were from outside the county and the city but had applied to his office and were denied.

Camilla Taylor, the marriage project director for Lambda Legal said,

It [Thursday's announcements] "reflects the fact that we're at a tipping point now ... (because) our government finds these laws indefensible," she said. "It comes at a time when a form of discrimination against a class of people in our society is so shameful and reprehensible that it's incapable of defense."

Attorney General Madigan's office Thursday refused comment but acknowledged that the AG would be filing briefs arguing in favour of the 25 couples, all of whose suits were consolidated into a single suit by a circuit court judge on Thursday.

The decision by the prosecutors to not defend the law has raised eyebrows among the legal community in the state who believe prosecutors are legally bound to defend Illinois law. The experts also maintain that this situation could lead to a judge knocking down the statute in a single ruling. Supporters of the same-sex marriage ban say it's "unconscionable" that there will not be a legal advocate arguing for the "people" in court to defend it, and some are strategizing over how to intervene.

Peter Breen, executive director of the Thomas More Society, a public interest law firm that opposes gay marriage, said the group "will be seeking relief from the court," though he didn't say exactly what that would be. Some experts have suggested the society could seek standing to defend the ban, though that's considered a long shot.

The state's Democratic Governor Pat Quinn recently announced his support for same-sex marriage, however legislative efforts to legalise it remain stalled in the General Assembly.

Currently, the District of Columbia and six states — Connecticut, Iowa, Massachusetts, New Hampshire, New York and Vermont — have legalized gay marriage. Laws legalizing gay marriage in Maryland and Washington state are on hold; opponents in Washington gathered enough signatures to put the issue to a vote this fall and those in Maryland are trying to do the same thing.