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AG Madigan gay marriage advice to county clerks expected today

Tuesday, Mar 4, 2014

* The Macon County State’s Attorney has refused to give permission to County Clerk Steve Bean to issue marriage licenses for gay couples in the wake of a federal judge ordering Cook County to grant the licenses.

Last week, Macon’s Clerk Bean wrote Illinois Attorney General Lisa Madigan for guidance. You can read that letter and the correspondence between Bean and his state’s attorney by clicking here.

* From the Decatur paper [Fixed link]…

Bean said he was informed [a week ago] Friday by Macon County State’s Attorney’s Office not to issue licenses, as the judge’s order only applied to the Cook County clerk.

“Unless and until ordered to do so by a court of competent jurisdiction, you … may not violate the standing law of the State of Illinois by issuing marriage licenses to same sex couples at this time,” the office’s statement said.

After receiving his first call Wednesday afternoon from a resident inquiring about getting a license, Bean again asked Macon County State’s Attorney Jay Scott to reconsider his opinion or to ask Attorney General Lisa Madigan to provide equal protection to all citizens of Illinois.

Scott said late Wednesday evening that his office’s position had not changed on the matter, reiterating it is a legal interpretation of the ruling devoid of any personal position. In a letter sent to the Bean on Wednesday evening, his office shared legal concerns about same-sex marriage licenses issued before June 1 that could later be challenged in a probate or divorce setting.

“There is a possibility that any same sex marriages occurring before the effective date … could be found invalid after the fact,” the letter states. “A declaration of invalidity of a same sex marriage in a probate or divorce proceeding could have far reaching ramifications.”

However, the letter states the attorney’s office can only advise the clerk, and it is ultimately Bean’s decision whether to proceed immediately with the issuing of licenses.

* McLean County is also issuing licenses

Despite the lack of guidance from state officials, McLean County will be the third county to begin issuing marriage licenses to same-sex couples.

McLean County Clerk Kathy Michael told BuzzFeed that she plans to begin issuing marriage licenses to same-sex couples as soon as late next week — a decision that comes just a day after Champaign County Clerk Gordy Hulten announced he would, under the court ruling, begin issuing such licenses.

Michael said her county will follow Hulten’s reasoning.

“I got ahold of our state’s attorney over the weekend and spent some time discussing this,” Hulten said. “They agreed with the Champaign state’s attorney’s opinion. But why wait go through [litigation] at the expense of the taxpayers? This will save a lot of people a lot of time and money.”

In his announcement, Hulten said he and his state’s attorneys concluded the Cook County ruling, which found the state’s statutory ban on marriage for same-sex couples violates the 14th Amendment of the U.S. Constitution, should apply to Champaign County.

* Others are considering it

In DeWitt, Smith said Thursday she hadn’t yet spoken with her county’s state’s attorney, who is handling a trial. But if he has no legal problem with it, she plans to issue licenses early.

“I will not do it until I discuss it with him,” Smith said. “If he has no problem with it, then I have no problem with it.”

Vermilion Clerk Lynn Foster said she consulted with State’s Attorney Randy Brinegar, who does not believe the county has the authority to change the date, because it’s not a “home rule county” like Cook. However, Foster said she wouldn’t be surprised if the state removes the date restriction, so her office has started making necessary changes in software and printing new marriage licenses if that happens.

“And I don’t have any reason to want to wait,” Foster said. “This legislation has passed, so I don’t see that there’s any reason why we should hold out.”

Foster said her office received a few calls Wednesday and Thursday inquiring whether Vermilion would be issuing licenses immediately.

* I called the attorney general’s office last week and asked about the matter. I was told there could be an announcement by Friday. Then I was told that some sort of announcement could happen Monday.

* It’s now Tuesday and Clerk Bean has sent another e-mail…

Last week Macon County Clerk Steve Bean wrote the Attorney General Madigan asking her office to guidance to downstate county clerks on the recent Federal Court decision on same sex marriages. Attorney General Madigan called me Friday afternoon about the letter. We are awaiting her guidance in how to procedure with same sex marriages. Like the Champaign and Mc Lean County Clerks I believe that all Illinois should have marriage equality fo all Illinois and not a single county.

I hope that the Attorney General will soon provide guidance to rest of the county clerks concerning marriage equality.

Aside from the spelling errors, he does have a point.

* I called the AG’s office again today and was told to expect something late this afternoon. So stay tuned.

- Posted by Rich Miller        


21 Comments
  1. - jim - Tuesday, Mar 4, 14 @ 12:05 pm:

    Cook County started issuing marriage licences for same-sex couples pursuant to a federal court order.
    Counties outside Cook are not in the same federal jurisdiction. Although I expect AG Madigan to give the go-ahead for this, I don’t see how county clerks can do so legally without a court order. Madigan has no judicial authority that would allow her to interpret the law and direct county officials to follow her bidding.
    It’s one thing to say that gay marriage should be — perhaps as a matter of fairness or morality — the law immediately. But the legislature set a start date, Cook County is ignoring that start date due to a court order and nothing else is happeneing. If proponents of homosexual marriage want the go-ahead they should go to court in the Central and Southern District of Illinois and get a court order, just like the plaintiffs in the Northern District of Illinois did. Don’t blithely dismiss the possibility that these marriages could be legally invalid based on the start date. of course, that issue won’t be raised until some of hte happy couples become unhappy and want a divorce.


  2. - wordslinger - Tuesday, Mar 4, 14 @ 12:13 pm:

    Yeah, take your time, Lisa. I’m sure you’re busy.

    For crying out loud, you have judges in Utah, Oklahoma, Texas, Kentucky, striking down gay marriage bans as unconstitutional under the 14th Amendment.

    The dam has been broken.

    Yet when one does so in Chicago, the Illinois Attorney General can’t find a pencil to provide a little guidance so folks can move forward in their lives?

    http://www.washingtonpost.com/blogs/govbeat/wp/2014/02/26/why-6-federal-judges-have-struck-down-state-gay-marriage-bans-in-their-own-words/


  3. - Commander Norton - Tuesday, Mar 4, 14 @ 12:15 pm:

    I’m supportive of the legislation, and I do understand the reasoning behind allowing terminally ill people to get married early. However, can anyone recall another instance in which a court has second-guessed the General Assembly as to the effective date of a law?


  4. - A guy... - Tuesday, Mar 4, 14 @ 12:15 pm:

    She’s been hands-on from the beginning on this one. Or not. I’ve heard of Federalists. I’ve heard of State’s Rights groups. Now we’ve got County Rights. Issue the advice and get it over with. How many times we gotta fight over this one. Yikes.


  5. - Rich Miller - Tuesday, Mar 4, 14 @ 12:16 pm:

    ===a court has second-guessed the General Assembly as to the effective date of a law===

    That’s not a GA issue, it’s a state Constitution issue.


  6. - LincolnLounger - Tuesday, Mar 4, 14 @ 12:23 pm:

    I feared Lisa’s election as Attorney General. I really thought she would be a crusading, liberal zealot that would make a state already inhospitable to the business community even worse.

    Instead, we seem to have elected a competent middle manager who is overly cautious and only reactive. She is all too often silent on the big issues of the day and her leadership is often MIA. In particular, her lack of activity on public corruption has been particularly disappointing. She has been a champion of SSM, but this has been a perfect example of an opportunity where her office could genuinely help these confused clerks with some sort of guidance (or, for many of them, cover). Instead, we get crickets.

    There’s lots to like and admire about Lisa, but, I was WAY off base in my expectations.


  7. - MadManMad - Tuesday, Mar 4, 14 @ 12:28 pm:

    Clerk Lana Phillips in Grundy County has also started issuing. Looks like the first was issued last week.


  8. - wordslinger - Tuesday, Mar 4, 14 @ 12:30 pm:

    –However, can anyone recall another instance in which a court has second-guessed the General Assembly as to the effective date of a law?–

    The judge ruled the current state law, still in effect, banning gay marriage as unconstitutional under the 14th amendment.

    Judges, Republicans and Democrats, all over the country, are doing the same thing.

    The Supremes will weigh in sooner rather than later and I’m quite certain that Justice Kennedy will make the history books with his majority opinion.

    It will be a universal right, not a privilege to be granted or taken away by the whims of state legislators.

    Is this a great country, or what?


  9. - Just Observing - Tuesday, Mar 4, 14 @ 12:44 pm:

    I’m a supporter of same sex marriage, but I find the desire among county clerks to issue licenses prior to June 1 potentially problematic if, as some say, the court ruling was only specific to Cook. Why risk invalidating ssm’s prior to June?


  10. - Commander Norton - Tuesday, Mar 4, 14 @ 12:53 pm:

    It’s a GA issue in that the effective date could have been immediate if the legislation had had 3/5 support in both chambers.


  11. - Joan P. - Tuesday, Mar 4, 14 @ 12:54 pm:

    @ jim: “Counties outside Cook are not in the same federal jurisdiction.”

    The Northern District of Illinois includes DuPage, Grundy, Kane, Kendall, La Salle, Lake, and Will counties in the Eastern Division, and Boone, Carroll, De Kalb, Jo Daviess, Lee, McHenry, Ogle, Stephenson, Whiteside, and Winnebago in the Western Division.


  12. - cover - Tuesday, Mar 4, 14 @ 1:08 pm:

    I’m with jim @ 12:05pm.

    The General Assembly could choose to address the situation at any time during this spring’s session by moving up the effective date, such a bill would only require a simple majority vote.


  13. - wordslinger - Tuesday, Mar 4, 14 @ 1:11 pm:

    –She has been a champion of SSM,–

    But it was the Old Man who put it over the goal line with some great muscle provided by the beautiful words of Pope Francis.


  14. - VanillaMan - Tuesday, Mar 4, 14 @ 1:26 pm:

    Tell her to hurry - there are gay divorces waiting her review too!


  15. - Rufus - Tuesday, Mar 4, 14 @ 1:32 pm:

    Only 88 days to June 1. It will be here before we know it. Breath deeply.


  16. - Sam - Tuesday, Mar 4, 14 @ 2:33 pm:

    a right delayed is a right denied


  17. - Anonymous - Tuesday, Mar 4, 14 @ 2:35 pm:

    - I do understand the reasoning behind allowing terminally ill people to get married early. -

    We’re all terminally ill, it’s just a matter of when. Can you guarantee good health for these couples until June?


  18. - jim - Tuesday, Mar 4, 14 @ 2:39 pm:

    Joan P. I stand corrected re the Northern District. I guess what I was trying to say is that counties outside the Northern District are playing with fire by issuing licenses to same-sex couples on the strength of the Northern District rulings. I was confusing the First district of Illinois, which is cook, with the Northern District of Illinois, which is cook and others you cited.
    thanks for writing. I learned something.


  19. - wordslinger - Tuesday, Mar 4, 14 @ 3:18 pm:

    –We’re all terminally ill, it’s just a matter of when–

    You got that right, daddio, lol. Act accordingly.


  20. - Anonymous - Tuesday, Mar 4, 14 @ 3:38 pm:

    What kind of lawyer do they have as state’s attorney in Vermilion County who thinks that “home rule” has anything to do with this?


  21. - Oh Come On! - Tuesday, Mar 4, 14 @ 8:44 pm:

    Some distorted words from Pope Francis, but hey the end always justifies the means.


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