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Cook County State’s Attorney: Illinois gay marriage ban unconstitutional

By Tony Merevick| Chicago Phoenix
Friday, June 15, 2012
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Cook County State’s Attorney Anita Alvarez held a press conference with County Clerk David Orr, the defendant in two lawsuits seeking marriage equality, both advising that same-sex marriage should be legal in Illinois. Alvarez filed a motion in support of the lawsuits Thursday, admitting that the state’s ban is unconstitutional.

At the press conference, Alvarez spoke of the unusual nature of their response to lawsuits against the County Clerk, noting that she will act as his legal counsel in the cases, Lazarro v. Orr and Darby v. Orr.

David Orr (left), and Anita Alvarez

“We do believe that the equal protection clause in the Illinois Constitution protects everyone in Illinois,” she said. “And the Illinois statutes that deny issuance of marriage licenses against same-sex couples violates the Illinois Constitution.”

Both the ACLU of Illinois and Lambda Legal filed the two separate lawsuits against Orr late last month on behalf of 25 gay and lesbian couples in Illinois, alleging that not issuing marriage licenses to same sex couples violates the equal protection and due process clauses of state law.

Orr has publicly expressed his personal support for marriage equality in the past, saying that it’s “overdue in Illinois.”

“As the defendant, I totally agree with the plaintiffs. Existing law in Illinois, I believe, discriminates against those people seeking marriage licenses,” Orr said. “We have hundreds if not thousands of civil union licenses being given to people who believe they are not being given their full loaf.”

Orr continued, “We’re talking about what the government does. And government should not be in the business of discriminating against people.”

Prior to the press conference, the State’s Attorney’s office released a statement detailing its stance on the cases.

“We are in agreement with the plaintiffs that Illinois laws that prohibit same sex marriage are unconstitutional. 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.”

Specifically, the State’s Attorney’s Office will, “admit the salient allegations within the complaint and concede that the equal protection clause of the Illinois Constitution prohibits discrimination in the issuance of marriage licenses based upon sex or sexual orientation,” according to the statement.

Asked if she’s allowed to state a position in favor of marriage equality despite standing law against it, and a constitutional duty to defend all laws, Alvarez said, “We are allowed to do that. As a lawyer, I’m looking at this legally. In looking at the statutes, the way they are written, it’s clear to us, it is our legal opinion that those statutes violate the legal protection clause of the Illinois Constitution.”

Alvarez is one of several key Illinois lawmakers who have come out in support of the lawsuits. Attorney General Lisa Madigan’s office filed papers saying the Attorney General would not defend the state’s current marriage law. Gov. Pat Quinn also announced his support for same-sex marriage shortly after President Obama publicly announced his own support during an ABC interview.

Equality Illinois, an LGBT rights advocacy group reacted to Alvarez’s motion in a statement Thursday afternoon, applauding the decision.

“It would have been a sheer waste of scarce taxpayer dollars for the State’s Attorney to defend a law that claims that heterosexual marriages are harmed by loving, committed gay and lesbian couples who simply want to be married themselves,” Randy Hannig, Equality Illinois’ Director of Public Policy, said.

The next hearing in the ACLU case will be June 21, when lawyers will submit a motion to combine the two lawsuits to Judge Moshe Jacobius, chief judge of the Cook County Circuit Court.

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