… Or, What If They Had A Lawsuit And Nobody Showed Up?
Earlier this week, Lambda Legal and the ACLU filed two lawsuits against David Orr, the Cook County Clerk whose office issues marriage licenses here, alleging that the provisions of the Illinois Marriage and Dissolution of Marriage Act which prohibit same-sex marriage violate the Illinois state constitution’s due process and equal protection clauses. Neither the county nor the state, however, is altogether eager to defend the law.
Illinois Attorney General Lisa Madigan (D) will be joining Lambda Legal and the ACLU in arguing that Illinois's civil unions law does not meet the state's constitutional guarantees of equal protection, raising the question of what the Cook County clerk of courts -- the named defendant -- will do in its response to the lawsuits.
The move sets up the unusual question of who will be defending the law in the lawsuits. Although the named defendant is Cook County Clerk of Courts David Orr (D) (who is represented in legal challenges by Cook County State’s Attorney Anita Alvarez (D)), Madigan is the chief legal officer of the state and her view that the state law is unconstitutional is significant. What’s more, the Chicago Tribune reports, “Orr has stated he applauds the lawsuits and is in favor of same-sex marriage,” so it is not clear -- especially following Madigan’s move -- that Orr (or Alvarez) will be defending the validity of state law excluding same-sex couples from marriage.
So far, it does not appear that State’s Attorney Alvarez has commented on the lawsuit. It’s worth noting, however, that Illinois Gov. Pat Quinn expressed his support for marriage equality last month:
The governor signed a bill legalizing civil unions in Illinois last year but has long been vague about whether he supports same-sex marriage. On Thursday [May 10, 2012], a Quinn spokeswoman left no room for equivocation, expressing the governor’s strongest stance on the issue since he ascended to the state’s top office in 2009.
“Gov. Quinn joins with President Obama in supporting marriage equality and looks forward to working on this issue in the future with the General Assembly,” Quinn spokeswoman Mica Matsoff said.
So who will defend Illinois’ ban on same-sex marriage if all these public officials support marriage equality? It presents a fascinating legal question, to be sure, but even more than that, it shows the growing isolation of the anti-equality movement. The Obama administration dropped its legal support of the Defense of Marriage Act last year, even before Pres. Obama publicly endorsed marriage equality. In California, state officials refused to defend Proposition 8 in federal court. And now, Illinois officials are publicly shunning marriage discrimination and, in the case of our Attorney General, are siding with marriage equality proponents in court.
With fewer and fewer public officials willing to stand in the way of progress, it must be awfully lonely for those remaining few who are on the wrong side of history.