County Clerks Petition to Intervene Could Defeat Illinois DOMA

Although it may have been intended to uphold Illinois' anti-gay Defense of Marriage Act, a recent petition to by two Illinois County Clerks to defend the Illinois Marriage and Dissolution of Marriage Act of 1996 in a marriage equality suit against Cook County Clerk David Orr could result in the Illinois DOMA being struck down statewide.

"There's an argument that had no one intervened in the case, the judge could have entered the declaratory judgment ruling that would have been valid only in Cook County," said Director of Communications and Public Policy at ACLU Illinois Edwin Yohnka.

Two recently consolidated suits brought by Lambda Legal and the American Civil Liberties Union (ACLU) of Illinois on behalf of 25 same-sex couples denied marriage licenses in Cook County sought "a declaratory judgment (that the Act is unconstitutional) and specific relief (granting our clients and thousands of others the freedom to marry)."

This potential for what the motion to intervene calls "legal chaos and uncertainty" is what Tazewell County Clerk Christie Webb said motivated her to be named as one of the petitioners. Webb, a Democrat, told the Associated Press that she is not taking a position on gay marriage, but rather wants to ensure a uniform law governing marriage licenses throughout Illinois.

Effingham County Clerk Kerry Hirtzel, the other petitioner, told the Effingham Daily News that although he does not favor legalization of same-sex marriage, his decision to participate in the case reflects his belief that the issue should not be decided in the courts.

"We always expected that there would be some challenge to our complaint. We just couldn't be certain from what direction or where that would come from," said Yohnka, noting that neither ACLU Illinois nor Lambda Legal contested the motion to defend the Act, believing it was important that the other side be heard.

Although the challenge is universally described as coming from "downstate," it began in Chicago with the Thomas More Society (TMS). The conservative public interest law firm sought clients in mid-June after Cook County State's Attorney Anita Alvarez followed Illinois Attorney General Lisa Madigan in filing a motion stating that she would not defend Cook County Clerk David Orr.

The move by Madigan and Alvarez left any of the other 101 Illinois County Clerks free to petition to intervene. Webb and Hirtzel, the only two respondents, are represented by their respective County State's Attorneys and by representatives from the TMS, appointed as Special Assistant State's Attorneys.

"This lawsuit was an 'inside job' to force same-sex marriage on all Illinoisians without providing the residents of the other 101 counties an opportunity to be heard," said TMS Executive Director and Legal Counsel Peter Breen, in a June 14 statement. The motion to intervene echoes the "upstate-downstate" rhetoric.

"[It] raises a disturbing question as to whether plaintiffs knew or suspected that, unlike defendant Orr, who has maintained a long-standing public position in favor of same-sex marriage, the county clerks in the other counties would have defended the law," said the petition to intervene, in reference to the fact that the 25 couples named in the case sought marriage licenses in Cook County, regardless of residence.

Yohnka dismissed the allegations, saying that there was "no coordination" among the couples in seeking Cook County marriage licenses.

"Cook County is a popular wedding destination for couples from around the State; indeed around the Midwest," said Yohnka, adding that as far as Lambda Legal and ACLU Illinois were concerned, "We just picked the largest county that issues the most marriage licenses."

Director of Public Policy for Equality Illinois (EQIL) Randy Hannig also rejected the implication that advocates for marriage equality were employing a strategy that pits Cook County against the rest of Illinois.

"It shows that opponents of marriage equality are grasping at straws," said Hannig, who noted that such a strategy -- by either friend or foe to marriage equality -- would be shortsighted and ultimately ineffective.

"Any challenge would go all the way up to the Illinois Supreme Court and become the law of the land," said Hannig.

But EQIL, which pursues both legislative avenues and judicial strategies toward marriage equality, argues that "chaos and uncertainty" cited in the petition to intervene already exist throughout Illinois. In the year since civil unions were legalized, EQIL has performed three check-ins (one month, six months, and one year after legalization) with Illinois County Clerks to gather data and troubleshoot issues.

Smaller counties like Tazewell and Effingham, which (according to EQIL data) have issued 28 and seven civil union licenses, respectively, are more likely to encounter bureaucratic and technological snags in issuing and honoring licenses for civil unions. Despite these barriers, Hannig notes that EQIL's experiences over the last year do not support the idea of a stark cultural divide in attitude toward the rights of same-sex couples.

"Throughout the state, [county clerks] have shown real excitement and diligence" in educating themselves and their employees, said Hannig said. "The thing we heard most often [in smaller counties] was disappointment that they didn't have more applicants for civil unions!"

But positive experiences in the experiment with civil unions notwithstanding, full marriage equality and one standard throughout the state of Illinois, whether through judicial or legislative means, remains the goal for Lambda, ACLU, EQIL, and similar organizations.