Illinois AG Supports Marriage Equality Lawsuits, Raising Question of Who Will Defend Civil Unions

Posted by Chris Geidner
June 2, 2012 10:45 PM |

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.

AGMadigan.jpgThe move came just two days after Lambda Legal and the ACLU each filed lawsuits challenging the constitutionality of the civil union law. 

In a pair of June 1 filings in Darby v. Orr and Lazaro v. Orr, which were reviewed by Metro Weekly, the attorney general's office has requested to intervene in the cases, which it says is appropriate because state law permits a court to allow the state to intervene when the validity of a state law is at issue. The Attorney General's Office is not requesting to intervene to defend the laws, however, which is the usual reason for such intervention.

In the requests, Madigan writes, "Petitioner respectfully requests the right to intervene in this case to present the Court with arguments that explain why the challenged statutory provisions do not satisfy the guarantee of equality under the Illinois Constitution."

On June 25, the Attorney General's Office will make the request to intervene in Darby, which was brought by Lambda Legal. On June 26, the office will make the intervention request in Lazaro, which was brought by the ACLU.

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. 

Regardless, because Orr cannot issue marriage licenses to same-sex couples under current state law, he would remain the defendant of the lawsuit. But, assuming he (or Alvarez) does not defend the civil unions law itself, there will be no one in court defending the constitutionality of the state's practice of allowing only straight couples to marry.

In the two other recent marriage-related lawsuit situations when this happened, another party stepped in to defend the law when the attorney general declined to do so.

In California, when then-Attorney General Jerry Brown (D) announced that he would be opposing the constitutionality of Proposition 8 there, the proponents of Proposition 8 were allowed to intervene in the constitutional amendment's defense. When U.S. Attorney General Eric Holder, in consultation with President Obama, determined that Section 3 of the Defense of Marriage Act was unconstitutional and stopped defending it, the Republican-led House Bipartisan Legal Advisory Group stepped in and was allowed to intervene in the law's defense in several challenges.

In Illinois, however, there is no anti-LGBT amendment with a proponent to stand up for the law, and the Democrats control both chambers of the legislature. Sen. John Cullerton (D) is the Illinois Senate president, and the speaker of the Illinois House, Michael Madigan (D), is the attorney general's father.


[NOTE: This post was expanded and updated as more information became available.]

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