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Downstate county clerks file to intervene in Illinois’ marriage lawsuit

By Tony Merevick| Chicago Phoenix
Monday, July 2, 2012
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CHICAGO — Two downstate Illinois county clerks are moving to intervene on behalf of the state’s marriage statute prohibiting same-sex marriage after top-ranking Cook County officials said they would not defend the law in a legal challenge headed by the ACLU of Illinois and Lambda Legal.

The Thomas More Society, a conservative legal action group, filed an emergency request to intervene late Friday afternoon on behalf of Clerks Kerry Hirtzel, a downstate Effingham County Republican and Christie Webb, a Democrat from Tazewell County in central Illinois, according to a news release.

“When the ACLU and Lambda Legal brought plaintiffs from across the State of Illinois to sue the Cook County Clerk, this became a statewide issue affecting the duties and responsibilities of every county clerk in the State of Illinois,” said Peter Breen, executive director and legal counsel of the Thomas More Society in the release. “Legal claims similar to those asserted here by the ACLU and Lambda Legal have been rejected by every federal appellate court and the substantial majority of state courts. Illinois’ marriage law is valid and constitutional. Our state’s laws deserve robust defense, and with this motion to intervene, we intend to ensure that defense.”

In late May, the ACLU and Lambda Legal filed two separate lawsuits on behalf of 25 gay and lesbian couples from throughout the state, who say they were refused marriage licenses by the Cook County Clerk’s Office.

Last month, the two suits were consolidated into a single case, which challenges the state’s recognition of marriage of as only between a man and a woman, alleging it violates the equal protection and due process clauses of the Illinois Constitution.

The Thomas More Society is spearheading the motion to intervene with the two clerks after Cook County State’s Attorney Anita Alvarez, Illinois Attorney General Lisa Madigan and Cook County Clerk David Orr, the defendant, boldly announced they would not defend the marriage law in court, leaving the plaintiffs virtually unchallenged. All three officials agree that the law violates the state constitution.

Marriage Equality proponents have watched the case closely such a move to intervene by opponents, following news that the Thomas More Society mobilized a third-party defense to uphold the law. The move would allow the Thomas More Society to act in place of David Orr in court.

Specifically, the motion argues that the lawsuit would create two separate marriage laws in Illinois, one for Cook County and one for the rest of Illinois if they are unopposed.

“The potential legal chaos and uncertainty from such a state of affairs is obvious and intolerable,” states the motion.

Breen explains that if the case remains unopposed in court, the Cook County judge would likely strike the current marriage law down, but the decision would be limited to the county and inapplicable throughout the rest of the state.

“Folks from outside of Chicago could go there and get a marriage license and then return home, where it may be expected to be recognized,” he said. “You shouldn’t have two sets of marriage laws in the same state. Then what?”

Breen goes as far to say that the ACLU and Lambda Legal should want a third party to intervene, so that if the Cook County ruling is appealed to a higher court and overturned to strike down the state’s marriage law, it would apply to a larger portion of the state. Breen concedes that it will be a confusing legal process moving forward.

However, LGBT rights advocates argue that similar chaos for Illinois citizens already exists.

“Legal chaos and uncertainty is exactly the situation that exists now under the separate status of marriages for opposite-sex couples and civil unions for same-sex couples, which has resulted in blatant discrimination,” said Bernard Cherkasov, CEO of Equality Illinois, the state’s oldest and largest LGBT advocacy organization. “The best way to remedy the legal chaos and uncertainty feared by the two county clerks represented by the Thomas More Society is to end marriage inequality.”

When reached on the phone, Webb reiterated the argument made in the motion.

“The purpose for myself being involved (in the suit) is uniformity of the law in the state,” she said. “Neither myself nor my office have a stance on same-sex marriage.”

A number of Illinois county clerks were contacted by the Thomas More Society to join the defense of the state law, and Webb was one of them, she said.

Hirtzel was out of his office Monday afternoon and was unable to comment. Breen was also unavailable for additional comments.

Camilla Taylor at Lambda Legal could not immediately be reached for comment.

The motion will be heard in court Tuesday before Judge Sophia Hall.

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