Lisa Madigan supports gay marriage lawsuit
Tuesday, Jun 5, 2012 - Posted by Rich Miller
* We’re coming to this a bit late in the game, but, whatever, let’s get to it now…
Illinois Attorney General Lisa Madigan has filed a motion to intervene in support of 25 same-sex couples who have sued for the right to marry in Illinois.
The attorney general will intervene in two separate lawsuits filed by Lambda Legal and the American Civil Liberties Union of Illinois, aimed at winning marriage equality in the state.
The suits were filed May 30 against Cook County Clerk David Orr in his official capacity ( Orr personally supports marriage equality and the lawsuits ) . Plaintiff couples have alleged that civil unions, which began a year ago, have failed to provide same-sex couples with the same rights gained through marriage.
In the motion, filed in the Circuit Court of Cook County Chancery Division, the attorney general asks “to present the Court with arguments that explain why the challenged statutory provisions do not satisfy the guarantee of equality under the Illinois Constitution.”
* More…
The lawsuits, filed Wednesday by the gay rights group Lambda Legal and the American Civil Liberties Union of Illinois, are against the clerk of Cook County and claim that his refusal to issue marriage licenses to same-sex couples violates those couples’ rights to due process and equal protection under the state’s constitution.
Cook County Clerk David Orr has stated he applauds the lawsuits and is in favor of same-sex marriage. Officials from the Cook County state’s attorney’s office, which will represent Orr, did not respond to calls seeking comment.
Peter Breen, executive director and legal counsel of the Chicago-based Thomas More Society, which opposes gay marriage, said after the lawsuits were filed that he expects the state’s attorney’s office to defend the state law that bars same-sex couples from marriage.
* From Illinois Review…
So because the Illinois Attorney General is not defending the state’s marriage law definition, private non-profit groups are stepping forward to fill the void of legal representation. Illinois law defines marriage to be between one woman and one man, and civil unions were allowed in 2011.
“Regarding the Illinois Marriage Law that the ACLU/Lambda Legal is attempting to get declared unconstitutional, you may be pleased to know that I signed a Contract of Legal Representation with ADF this afternoon so that IFI can intervene to defend the law,” Smith announced Monday afternoon.
Discuss.
- Southern Peggy R - Tuesday, Jun 5, 12 @ 12:30 pm:
Of course she does. So, who will defend the law? Is that not her job? Will she abdicate as Holder did at DoJ? What parties have the right to intervene and defend current law?
- Newsclown - Tuesday, Jun 5, 12 @ 12:42 pm:
I’m curious what the steps in the process will be from here: suit against the City loses, status quo. Suit wins, is the city law rendered invalid, and then do those civil unions already performed no longer count for anything? Then the appeals chain: how many trials before it winds up in State Supreme Court, then Federal?
This kabuki theatre could take a decade to work itself thru all the trial and appeal steps, with no guarantee of success at the end of it, so I have to wonder if it’s worth all that, or if the existing laws could be expanded and improved in less time, by a steady, concerted and thoughtful campaign?
Sometimes you have to directly confront and keep the pressure on, and sometimes you consolidate gains and grow a base of support and a more educated electorate for the next jump forward. Civil rights history contains both approaches.
- South of Sherman - Tuesday, Jun 5, 12 @ 12:44 pm:
I can’t wait to see the solid legal reasoning IFI employs as it seeks to defend marriage inequality.
“Your Honor, in the case of Sodom v. Gomorrah…”
- Cal Skinner - Tuesday, Jun 5, 12 @ 12:45 pm:
As in other states, if proponents can’t get it through the legislature, use the courts.
- I'M ON MY LUNCH BREAK! - Tuesday, Jun 5, 12 @ 12:49 pm:
Is there any precedent for an Illinois Attorney General to intervene in a lawsuit for the express purpose of arguing that a Illinois statute is unconstitutional? I know one of her powers is to intervene in lawsuits to defend State statutes from claims that they are unconstitutional (although she is not required to), but I’m not sure where the authority to do the opposite would come from.
- Palos Park Bob - Tuesday, Jun 5, 12 @ 12:52 pm:
When the AG refuses to vigorously defend the statutes as passed by the GA and signed by the GOTI (Governor of Illinois), is this a dereliction of duty that may provide grounds for removal from office?
Without a vigilant AG, this could provide a means of overturning virtually any state statute.
Just have some special interest file a suit and “throw the case”.
If she is unwilling to defend the duly enacted laws of Illinois, the only ethical thing for her to so is step down.
Not going to happen in this, the most corrupt and unethical state government in the nation.
- Rich Miller - Tuesday, Jun 5, 12 @ 12:53 pm:
===I’M ON MY LUNCH BREAK!===
I sure hope you’re not eating at your desk. The Executive Inspector General frowns on that sort of thing. lol
- Rich Miller - Tuesday, Jun 5, 12 @ 12:55 pm:
===If she is unwilling to defend the duly enacted laws of Illinois, the only ethical thing for her to so is step down.===
She is sworn, above and beyond all else, to defend the state and US constitution, not state laws.
- Palos Park Bob - Tuesday, Jun 5, 12 @ 12:58 pm:
Good point, Rich, thanks for the clarification.
- Shore - Tuesday, Jun 5, 12 @ 12:58 pm:
yawn.
- Yellow Dog Democrat - Tuesday, Jun 5, 12 @ 1:11 pm:
First, its the Cook County Clerk being sued, and its the Cook County State’s Attorney’s job to defend, not the Illinois Attorney General.
Secondly, as Rich points out, its the AG’s job first to uphold the Constitution.
Third, I almost fell out of my chair laughing at the Illinois Review article:
“private non-profit groups are stepping forward to fill the void of legal representation.”
More like the nonprofits are tripping over each other. Or “Giddy as schoolgirls”. If not for rare cases like these, the IFI and Thomas More Society would cease to exist.
Trust me, their fundraising will be prolific.
- The Captain - Tuesday, Jun 5, 12 @ 1:12 pm:
I think today is the first time I’ve ever heard of the Governor referred to as GOTI, not to be confused with the facial hair I hope.
- JustaJoe - Tuesday, Jun 5, 12 @ 1:14 pm:
LM, if indeed sworn to defend the constitution, would then defend it by abiding by the separation of powers. It would then seem inappropriate for her to comment taking a legal position on the matter.
Moreover, where does the “equal protection” really come in? Are male and female restrooms somehow not legal and should they be “generic”?
- Ethics anyone? - Tuesday, Jun 5, 12 @ 1:17 pm:
Who is Madigan’s client? My understanding is, her client is the state. She is, I think, supposed to uphold and defend state law–I believe she took an oath of office to that effect. State law, I believe, defines marriage as between a man and a woman. Now, I’m not saying that the law is right, but the law is the law, and Madigan, as attorney general, has a duty to defend it, whether she agrees with the law or not. I hope that the Illinois Attorney Registration and Disciplinary Commission is paying attention here, because it seems to me that our attorney general is flouting the rules of professional conduct that say what is and what is not improper conduct for an attorney. I think that an attorney general who goes to court to argue against a state statute is acting unethically and should be appropriately investigated by the ARDC, then disciplined by the Supreme Court. How is this any different than an attorney standing up in court and saying “Sheesh, this is a really heinous crime, your honor, I gotta say that I know my client to be guilty and I just can’t go on.”
This said, I think that the law should be changed, but, again, that’s beside the point. Aggravating this situation is the fact that the parties here seem to have competent counsel absent the attorney general and the attorney general in Illinois, of all states, surely has a lot of things that should be keeping her busy. I wish Madigan would spend more time tracking down the telemarketers who keep calling my cell phone and less time grandstanding for votes.
- Roy Cone - Tuesday, Jun 5, 12 @ 1:19 pm:
Where does the state constitution offer rights for couples? People may have been created equal, but their relationships are not. Those supporting same-sex “marriage” are in it only for the benefits. Marriage defined as between a man and a woman is thousands of years old.
- wordslinger - Tuesday, Jun 5, 12 @ 1:22 pm:
–Of course she does. So, who will defend the law? Is that not her job? Will she abdicate as Holder did at DoJ? What parties have the right to intervene and defend current law?–
Peggy, I’m sure we can count on you to keep peeking in your neighbors windows, a la Mrs. Kravitz on “Bewitched.”
“Abner, Abner…”
- Rich Miller - Tuesday, Jun 5, 12 @ 1:23 pm:
===She is, I think, supposed to uphold and defend state law–I believe she took an oath of office to that effect.===
Wrong, wrong, wrong.
Once again, with feeling, from the Illinois Constitution…
SECTION 3. OATH OR AFFIRMATION OF OFFICE
Each prospective holder of a State office or other State position created by this Constitution, before taking office, shall take and subscribe to the following oath or affirmation:
“I do solemnly swear (affirm) that I will support the Constitution of the United States, and the Constitution of the State of Illinois, and that I will faithfully discharge the duties of the office of …. to the best of my ability.”
- Rich Miller - Tuesday, Jun 5, 12 @ 1:30 pm:
===Are male and female restrooms somehow not legal and should they be “generic”? ===
Wow. Welcome to the blog, anti ERA protester!!! lol
- Learning the Ropes - Tuesday, Jun 5, 12 @ 1:34 pm:
JustaJoe: ==Are male and female restrooms somehow not legal and should they be “generic”?==
It would be more accurate to say, I don’t know, delegating a particular class of people a separate set of restrooms and saying “Here, these are pretty much the same thing, so be happy with that.”
That always works out well, right?
- Bigtwich - Tuesday, Jun 5, 12 @ 1:46 pm:
The Attorney General represents the People and decides what position the People take. Its good to be the King, uh Queen.
Fergus v. Russel (1915), 270 Ill. 304,
* * * Under our form of government all of the prerogatives which pertain to the crown in England under the common law are here vested in the people, and if the Attorney General is vested by the constitution with all the common law powers of that officer and it devolves upon him to perform all the common law duties which were imposed upon that officer, then he becomes the law officer of the people, as represented in the State government, and its only legal representative in the courts, unless by the constitution itself or by some constitutional statute he has been divested of some of these powers and duties.
* * * “
- wordslinger - Tuesday, Jun 5, 12 @ 1:51 pm:
–Marriage defined as between a man and a woman is thousands of years old.–
Really? How many “thousands,” and who defined it?
- Rich Miller - Tuesday, Jun 5, 12 @ 1:58 pm:
People, the 1970s called, it wants its unisex restroom debate back.
Enough. Move along.
- Learning the Ropes - Tuesday, Jun 5, 12 @ 2:03 pm:
wordslinger, I’m quite certain there are some thousands of years old definitions that include: polygamy, homosexuality, complete possession of spouse (including right to beat or sell), bans on inter-tribal/cultural/racial marriages, and of course, lots and lots of incest.
We really need to declare which dictionary we’re referencing.
- late to the party - Tuesday, Jun 5, 12 @ 2:04 pm:
–Marriage defined as between a man and a woman is thousands of years old.–
Roy,
Do we really need to break out the list of what else was ‘defined’ thousands of years ago? I could think of few things ‘defined’ in this country less that 300 years ago that I, for one, am glad were redefined. Maybe you don’t feel the same way.
- Yellow Dog Democrat - Tuesday, Jun 5, 12 @ 2:25 pm:
Rich -
“Just because you are talking, doesn’t mean They are listening.”
- Dr. Murray Fischel, Kent State
- Yellow Dog Democrat - Tuesday, Jun 5, 12 @ 2:38 pm:
@Roy:
Marriage wasn’t even defined as being “between a man and a woman” in the US until a century ago, when the US banned polygamy and Mitt Romney’s family fled for Mexico.
Today, polygamy is fully legal in 50 countries representing a third of the world’s population.
Is marriage between two women that much stranger than marriage between a man and 12 women, not if you believe in Western notions of romantic love.
And if you believe in the idea that the purpose of marriage is procreation, polygamy makes more biological sense.
It takes some somersaulting to land at the conclusion that the purpose of marriage is procreation…but not TOO MUCH procreation.
Finally, its worth noting that early Christians
Believed ALL marriage was sinful, because it condoned Original Sin.
-YDD
- wishbone - Tuesday, Jun 5, 12 @ 2:53 pm:
“What parties have the right to intervene and defend current law?”
The haters will always find someone.
- mark walker - Tuesday, Jun 5, 12 @ 3:15 pm:
If I understand correctly, the Illinois AG can appropriately argue on behalf of the people, consistent with her oath to support the Constitution of the United States, that the equal protection clause of the US Constitution requires change to current Illinois law and public practice on same-sex marriage.
The easy route would have been simply not to defend current state law, analogous to Holder on DOMA. She took a more audacious route.
I am pro-marriage equality, but remain more comfortable with the likely inevitable legislative route.
- Anonymous - Tuesday, Jun 5, 12 @ 3:48 pm:
==People may have been created equal, but their relationships are not.==
Spoken like a true bigot.
- Demoralized - Tuesday, Jun 5, 12 @ 3:49 pm:
Sorry . . . that was me above
- Demoralized - Tuesday, Jun 5, 12 @ 3:50 pm:
mark walker:
When the legislature won’t act to right a wrong then sometimes you have to go to the Courts. I am all for forcing people into the 21st Century.
- Yellow Dog Democrat - Tuesday, Jun 5, 12 @ 3:58 pm:
@Demoralized -
I don’t want to force people in to the 21st Century.
But I don’t think those who want to remain in the 19th Century should be allowed to hold the rest of us back.
The MAJORITY of Fortune 500 companies provide identical benefits for partnerships, regardless of the genders of the partners.
Heck, I think the majority even ban discrimination based on sexual identification (”transgenders”).
@mark walker -
I lament this legal case may have given the General Assembly a pass, which will be fine if the plaintiffs prevail, but could set us back a decade if they fail.
- steve schnorf - Tuesday, Jun 5, 12 @ 4:33 pm:
dog, you’re really on today
- Demoralized - Tuesday, Jun 5, 12 @ 4:43 pm:
YDD:
I don’t care what the majority of companies do. It’s an issue of eqality and fairness. I have zero tolerance on this issue. The bigots that make up the IPI (which is a laughable name to begin with) and all of their like minded friends need to be put in their place once and for all on this issue. I’m sick of the religious right sticking their noses in government policy making and trying to force their Bible to being the legal code. I will be happy when the day comes when I can poke all of them in the eye and tell them to take their bigoted selves back inside their churches where they can discriminate as much as they want.
- Southern Peggy R - Tuesday, Jun 5, 12 @ 4:49 pm:
Wordslinger: On your first comment a la Mrs. Kravitz. This is not about what people do privately. This is about the state recognizing relationships that are not like marriage. There is no concern on the part of the state that 2 men or 2 women will create children that will be abandoned by a father. (40% of IL children are born out of wedlock; a good many are likely state dependents. Heterosexual marriages is vital to society and the state.) That can happen when a man and woman do what they do in private, but not when 2 men or 2 women do whatever it is they do. There are no benefits or concerns to the state–though there are negative social effects of homosexual relationships, we social conservatives believe. Conservatives would not give a rat’s a** if the homosexuals were not insistent of our approval of their way of life and our changing our beliefs to accommodate their 1% of society.
- Demoralized - Tuesday, Jun 5, 12 @ 4:51 pm:
Peggy:
What are we forcing you to believe or accomodate? How exactly are you affected by gay marriage? And what exactly are the negative social effects of gay marriage? And try answering without quoting the Bible because I could care less what the Bible says.
- Anonymous - Tuesday, Jun 5, 12 @ 4:56 pm:
@Demoralized and YDD:
I am with you in principle, and certainly hope we prevail in the courts.
But I would focus on YDD’s last line: it seems to me that recent referenda and court cases on this issue have done as much harm as good, and the strongest chance for sustainable success is through legislative action.
- JustaJoe - Tuesday, Jun 5, 12 @ 5:17 pm:
It is discouraging to see the knee-jerk call of “bigot” applied to anyone who might dare to respectfully disagree with the prevailing liberal view of this issue. Would that make the governor a bigot? And I still think it is inappropriate for the AG to take a position against a state law that her office could conceivably be in a position to defend.
- Cheryl44 - Tuesday, Jun 5, 12 @ 5:48 pm:
Peggy,
Nobody cares about your beliefs. You can sit there and disapprove all you want. They just want the same rights you and I have.
BTW what are the “negative social effects of homosexual relationships?”
- Retired Non-Union Guy - Tuesday, Jun 5, 12 @ 7:01 pm:
Let’s take a step back and get some perspective.
In Illinois, (as I understand it) a civil union gives you all the smae legal rights and benefits as marriage. You can even file an IL-1040 checking line D as if you had filed a Fed 1040 married. What civil unions don’t give you is the right to actually check the ‘married’ box on the Federal 1040.
That is a Federal issue, not a state one. Trying to attack it at the State level seems counter productive. Yes, I know the ’seperate but equal’ argument … but, unlike a lot of those laws that resulted in only a somewhat equal result, the law truly is equal (in terms of benefits conferred) at the state level. It seems to me the proper venue would be Federal court, not county / state to get civil unions recognized for Federal tax purposes.
- Wonderbar - Tuesday, Jun 5, 12 @ 9:35 pm:
I haven’t seen the complaint, Retired Guy, but you should know that the Illinois Constitution has its own equal protection clause and the Illinois Supreme Court is the final authority on it. I am guessing the plaintiffs based their claims on the IL clause– partially if not entirely. Folks, I know this will sound elitist, but when you throw around terms like equal protection, the ARDC, the AG’s duties, and the types of things that should be in federal rather than state court, you generally don’t know what you are talking about unless you are a lawyer (and even then you may not know).
- Anonymous - Tuesday, Jun 5, 12 @ 9:39 pm:
The courts had to end racial segregation in schools and public accomodations and sadly they will have to step in here as well because the legislature is too busy pandering to bigots.
- Demoralized - Tuesday, Jun 5, 12 @ 9:59 pm:
Hey Rich. Bite me for deleting my comments. Apparently my questions to bigot Peggy weren’t relevant enough for you.
- 47th Ward - Tuesday, Jun 5, 12 @ 10:05 pm:
Go easy Demoralized, we all get deleted here from time to time. Complaining only makes it worse.
- Roy Cone - Tuesday, Jun 5, 12 @ 11:21 pm:
Yes, it’s about procreation. To many, marriage is a more than a union or relationship, it’s a a sacred institution, a sacrament.
I’m open to an intelligent discussion on the definition of marriage. But anytime one resorts to name-calling, he/she suggests a lack of using logic to argue.
- Southern Peggy R - Wednesday, Jun 6, 12 @ 12:41 am:
Wow. Sorry I’ve been out at my kids’ little league game and missed the fireworks. Thank you Rich for allowing my comments to stand without insult.
Cheryl44: Every individual has the right to enter into a marriage as we understand it–with some one of the opposite sex–and has the right not to do so. A union of 2 men or 2 women does not raise the same state interests as the union of a man and woman. Homosexual unions are not logically the same as heterosexual unions. And we’re talking about turning fundamental social understanding on its head for merely 1% of society. For many activists, it’s the tax and other financial bennies; for others it’s that they want their idea of happiness to be equal to marriage, which besides being a source of happiness, provides several functions for society. Some folks (including heterosexual allies) pursue this because they hate the Catholic Church, which is standing stronger than all the others against homosexual marriage.
Leave the 99% of society out of it, and conservatives really don’t care what the 1% do. Honestly. Truly. The only “hate” is toward the imposition being made upon the rest of us by a small portion of society. I’d think libertarians would rather have no govt involvement in marriage regulation at all. I am not on board with that entirely, but I get it.
- Colossus - Wednesday, Jun 6, 12 @ 9:33 am:
@Captain: I was working through the thread and wondered about GOTI myself, glad I’m not the only one.
Eh, doesn’t matter, he’s just someone that I used to know.
- Robert Hagedorn - Wednesday, Jun 6, 12 @ 4:12 pm:
Google First Scandal.