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*** UPDATED x1 *** AG Madigan: Gay marriage prohibition is unconstitutional, but counties need to be careful

Wednesday, Mar 5, 2014

* I was out of the office chasing other stories when Attorney General Lisa Madigan released a letter to the Macon County Clerk, who was asking for direction on whether to issue same sex marriage licenses. The clerk’s state’s attorney had advised against it, so he turned to Madigan several days ago. From her response

For the reasons explained in more detail in the legal papers filed in the Lee case, my office’s position is that current Illinois restrictions against same-sex marriage violate the equal protection rights that belong to all citizens under the United States Constitution. Since the United States Supreme Court’s landmark decision in United States v. Windsor, 133 S. Ct. 2675 (2013), there has been a consistent stream of lower federal court decisions declaring restrictions against same-sex marriage unconstitutional. […]

In its February 21, 2014 decision, the court in Lee likewise ruled that “marriage is a fundamental right to be equally enjoyed by all individuals of consenting age regardless of their race, religion, or sexual orientation, and the public policy of this State has been duly amended to reflect that position.” Because the case was filed only against Cook County Clerk David Orr, the court stated that its ruling applied only to Cook County: “Although this Court finds that the marriage ban for same-sex couples violates the Fourteenth Amendment’s Equal Protection Clause on its face, this finding can only apply to Cook County based upon the posture of the lawsuit.”

As a general matter, a court decision is not binding on persons who were not parties to the case. In limited circumstances, a person who was not a party may be considered to be in privity with one of the parties and therefore bound by the court’s rulings. That exception does not apply here. […]

Even though the ruling in Lee is not binding on you, the protections guaranteed by the Constitution must exist without regard to county lines, and the Lee decision, along with the federal court decisions noted above, should be persuasive as you evaluate whether to issue marriage licenses to same-sex couples. Additionally, while the ruling in Lee does not control other courts as binding precedent, we expect Lee to be persuasive to other state or federal trial courts addressing the same questions. If there is another suit challenging a county clerk’s refusal to issue a marriage license to a same-sex couple in Illinois, our office would likely move to intervene, as we did in Lee, and urge the court to follow the holding in Lee.

Thus, in deciding whether to issue marriage licenses to same-sex couples before June 1, each county clerk should consult with his or her State’s Attorney and give full consideration to the rulings in Lee and the many other cases cited above, as well as to the cost and potential outcome of litigation in the event of a lawsuit challenging any denial. In the meantime, same-sex couples who wish to marry in Illinois before June 1 may ask their local clerks to issue the marriage licenses. If such requests are denied, couples may opt to obtain their marriage licenses in Cook County to be married there, or they may file a lawsuit, as the plaintiffs did in Lee, in which we would argue that it is unconstitutional to deny marriage licenses to same-sex couples.

* Gov. Pat Quinn issued a statement

Governor Pat Quinn today released the following statement on the state’s immediate recognition of marriage equality for all:

“Nobody should have to wait for equal rights when it comes to love. I encourage every county clerk in Illinois to quickly follow the Attorney General’s guidance.

“Following this guidance, the Illinois Department of Public Health will now accept all marriage licenses issued by any county clerk in Illinois.”

Under current law, the public health department helps ensure that new marriages comply with state laws.

* From Equality Illinois…

Equality Illinois said Monday that a letter released tonight by Atty. Gen. Lisa Madigan gives all Illinois counties the green light to immediately begin issuing marriage licenses to same-sex couples.

The letter released by the Illinois attorney general regarding marriage equality says “the protections guaranteed by the Constitution must exist without regard to county lines.”

The letter was sent in response to a question from Macon County Clerk Stephen Bean in Decatur about whether the federal court decision ordering Cook County Clerk David Orr to begin issuing licenses to same-sex couples applies to counties in the rest of the state. It was shared with all 102 counties in the state.

“We agree with the Attorney General that the recent federal decision knocking down restrictions on marriage equality as unconstitutional should be the determining factor in clerks’ decisions to issue the licenses before the June 1 effective date of the Illinois Religious Freedom and Marriage Fairness Act,” said Bernard Cherkasov, CEO of Equality Illinois, the state’s oldest and largest advocacy organization for lesbian, gay, bisexual and transgender Illinoisans.

“Already some 260 couples have obtained licenses in Cook County, according to David Orr’s office, and there are many thousands more around the state awaiting the time that they can have their love legally recognized,” Cherkasov said.

* Tribune

Lake County officials said Tuesday that they had no plans to start issuing same-sex marriage licenses before June 1, according to State’s Attorney Mike Nerheim.

Lawyers in the prosecutor’s office, which gives legal counsel to Lake County Clerk Willard Helander’s office, view the ruling that Madigan cited as applying only to Cook County, Nerheim said.

Issuing questionably valid licenses could make a mess of future divorce and probate cases, Nerheim said.

“We just want to make sure that those licenses are valid,” he said.

Officials from other counties in the Chicago area did not immediately respond to requests for comment.

*** UPDATE *** Another one

St. Clair County Clerk Thomas Holbrook on Wednesday said his county was ready to immediately start issuing marriage licenses to same-sex couples. The announcement came a day after Attorney General Lisa Madigan told all Illinois county clerks they had the right to give them out.

- Posted by Rich Miller        

  1. - wordslinger - Wednesday, Mar 5, 14 @ 9:20 am:

    Well, that cleared things up, lol.

    A little less attorney and a lot more general, as in bold leadership, please.

    June 1 seems far away when you have to shovel snow on the morning of March 5.

  2. - Out Here In The Middle - Wednesday, Mar 5, 14 @ 9:29 am:

    ==as well as to the cost and potential outcome of litigation in the event of a lawsuit challenging any denial==
    Seems to me that she is saying “I can’t tell you what to do here but you need to know that if anyone files a lawsuit against your county it will cost you money and you will lose!”

  3. - Just Observing - Wednesday, Mar 5, 14 @ 9:39 am:

    The AG’s opinion seems a bit too political and not enough legal. While I am a supporter of SSM, I think the best approach, outside of Cook, is to wait until June 1 to ensure no legal snafus.

  4. - RonOglesby - Wednesday, Mar 5, 14 @ 9:49 am:

    Geez. Thanks for clearing that right up!

  5. - Under Further Review - Wednesday, Mar 5, 14 @ 9:53 am:

    Not a surprise.

  6. - Wensicia - Wednesday, Mar 5, 14 @ 10:14 am:

    Wishy-washy response. Too bad Lake County is buying this as a reason to hold off until June.

  7. - Yellow Dog Democrat - Wednesday, Mar 5, 14 @ 10:37 am:

    I am not really sure how there is any jeopardy for divorce or probate. A couple applying for a marriage license is going to come back later and argue what exactly? I had no legal right to get married in May, my marriage should be voided? Don’t think so.

    As for probate: if one party dies and the estate is contested because there is no will…um, okay, this can be fixed legislatively, but more importantly:

    No State’s Attorney who opposes marriage equality has a leg to stand on when they claim they are delaying the implementation of marriage equality in order to protect the private marriage rights of those same individuals.

    There basic argument goes something like this: “I don’t want Adam and Steve to get married until July because, God forbid something happens to Steve, I want to make sure his estate goes to his husband Adam and not his biological relatives.”

    Phony argument if I ever heard one.

  8. - A guy... - Wednesday, Mar 5, 14 @ 10:55 am:

    I guess the advice is still coming?

  9. - VanillaMan - Wednesday, Mar 5, 14 @ 11:12 am:

    What a bunch of pathetic drivel.

  10. - Yellow Dog Democrat - Wednesday, Mar 5, 14 @ 1:56 pm:

    Hurrah for Holbrook!

  11. - Anon. - Wednesday, Mar 5, 14 @ 2:01 pm:

    ==A couple applying for a marriage license is going to come back later and argue what exactly?==

    “Our marriage was not legal, and gave my soon-to-be-ex no rights.”

  12. - macon county clerk - Wednesday, Mar 5, 14 @ 2:19 pm:

    Macon County Clerk will begin issusing Same Sex Marriage licenses on Monday, March 10th.

  13. - FoxValleyPride1 - Wednesday, Mar 5, 14 @ 7:22 pm:

    Apparently, Grundy County is on board as well.

Sorry, comments for this post are now closed.

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