July 3, 2012
By Jacob Combs
As we’ve been covering here at Prop8TrialTracker.com, Lambda Legal and the ACLU of Illinois filed a lawsuit late last month in Illinois arguing that the state’s ban on marriage equality violates gay couples’ constitutional right to equal protection under the laws since they are provided the legal rights of marriage through civil unions but not the title of marriage. The Illinois case is a unique one because almost all of the pertinent government actors are supporters of marriage equality: Cook County Clerk David Orr, the named defendant in the two lawsuits, wrote that he hoped they would be “the last hurdle to achieving equal marriage rights for all,” and both Illinois Attorney General Lisa Madigan and the Cook County State Attorney filed motions in the case supporting the plaintiffs’ constitutional arguments and refusing to defend the law. With none of the official government defendants expressing any desire to defend the statute, it was an open question as to who would do so.
Yesterday, Chicago public radio station WBEZ reported that two downstate clerks, Republican Kerry Hirtzel of Effingham County and Democrat Christie Webb of Tazewell County, filed requests to intervene in the lawsuits (which were recently consolidated by a judge) in place of state’s government lawyers. The Chicago-based Thomas More Society, a conservative law group, had announced that it would support anyone who stepped up to defend Illinois’s marriage ban, and will coordinate with the two county clerks if their request is accepted.
In their filings, the clerks argued that the case could create two sets of marriage laws in the state, one for Cook County and one for the rest of Illinois. ”The potential legal chaos and uncertainty from such a state of affairs is obvious and intolerable,” the motion states. This is an interesting argument to make, since a successful constitutional challenge in Cook County would very likely be extended in a court ruling to apply all gay and lesbian couples in the state. For example, the Prop 8 case in California was officially filed against just two of the state’s 58 county clerks, but the ruling at both the district and appellate court levels is widely understood to apply to all 58 counties.
Still, if the Prop 8 case is any indication, the two county clerks may face an uphill climb is getting their motions to intervene accepted by the court. As Camilla Taylor, the head Lambda Legal lawyer on the case, said to WBEZ, “You can’t intervene just because you have an ideological objection to the potential outcome, or because you’re a public official required to follow the law, and the lawsuit has the potential to change it.”
The consolidated case will be heard by Judge Sophia Hall. No court date has been set.
UPDATED (3:00 p.m. EDT): The Chicago Tribune reports that Judge Hall has granted the clerks’ motion to intervene. Judge Hall also set a hearing date for Sept. 27 for a motion by the Thomas More Society to dismiss the suit filed by Lambda Legal and the ACLU.
Also today, the judge presiding over the Nevada marriage equality case of Sevcik v. Sandoval has set a hearing date for August 6 at 1:30 p.m. local time for oral arguments on motions to intervene and to dismiss the suit. We’ll have full coverage of that hearing when it happens.