June 4, 2012
By Jacob Combs
The upcoming court battle in Illinois over the constitutionality of civil unions and the state’s prohibition on marriage equality looks like it promises to be an intriguing and unusual one. Earlier this week, Lambda Legal and the ACLU of Illinois announced that they were simultaneously filing two lawsuits, Darby v. Orr and Lazaro v. Orr, arguing that the civil unions the state began offering to gay and lesbian couples last year infringe upon those couples’ equal protection rights under the Illinois Constitution.
David Orr, who is the official government defendant in both lawsuits by virtue of his position as Cook County Clerk, is himself a supporter of marriage equality: in a statement released by his office last week, Orr wrote of his “hope [that] these lawsuits are the last hurdle to achieving equal marriage rights for all.” Because of Orr’s position, it seems unlikely that he will elect to put forward any strong defense of the status quo once the cases make their way to court.
In another twist, Illinois Attorney General Lisa Madigan announced over the weekend her plans to intervene in the two marriage cases–on the side of the plaintiffs. Usually, state Attorneys General intervene in court cases when state laws are challenged in order to support those statutes, or, as in the case of Proposition 8 and California Attorney General Kamala Harris (like her predecessor Jerry Brown), they choose to opt out of such lawsuits if they do not support the law in question. Madigan, however, believes that Illinois’s civil unions law does not in fact adequately protect equal protection rights, and plans to intervene on behalf of Lambda Legal and the ACLU in both cases.
With both Orr and Madigan expressing support for the lawsuits, it’s an open question now as to who will actually defend the constitutionality of the civil unions law in court. David Orr would normally be represented in court by Anita Alvarez, the state attorney for Cook County, but it is unclear if the Democratic attorney will opt to defend the law, especially after Madigan’s announcement.
In California, when both the Governor and Attorney General declined to support Proposition 8 in court, the constitutional amendment’s official backers intervened in court to defend it. In Illinois, however, there are no ballot proponents to stand up for the civil unions law (since it was enacted legislatively and not by a popular vote), and Democrats control both chambers of the legislature. It will be interesting to see who steps forward to defend the law, and if the courts decide to allow them to do so.