Downstate county clerks move to defend gay marriage ban

July 2, 2012

Two downstate county clerks are stepping in to defend Illinois' gay marriage ban, after high-ranking government lawyers made the rare decision not to defend the state law against a pair of legal challenges in Cook County.

The request to intervene in the lawsuits was quietly filed late Friday afternoon by Clerks Kerry Hirtzel, a Republican from downstate Effingham County, and Christie Webb, a Democrat from Tazewell County in central Illinois.

The two lawsuits challenging Illinois' marriage law are being brought by 25 same-sex couples who were turned away when they tried to get marriage licenses from Cook County Clerk David Orr.

The move to intervene is being spearheaded by the Chicago-based Thomas More Society, a conservative non-profit law group. They come just a couple of weeks after Cook County State's Attorney Anita Alvarez announced she would not defend the state's same-sex marriage ban against the lawsuits, because she, too, thinks it violates the Illinois Constitution. In early June, Illinois Attorney General Lisa Madigan also filed court papers indicating she would not defend the state law.

"The potential legal chaos and uncertainty from such a state of affairs is obvious and intolerable."

After both Democrats stepped out of the way, the Thomas More Society and other groups decided to fill the breach.  They began oraganizing a third-party defense of Illinois' current marriage law, which says marriage must be between a man and a woman.

Friday's court filings argue that if the two gay marriage lawsuits continue unopposed, it 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.

Neither Hirtzel nor Webb were immediately available for comment.

On Monday, the two groups that are arguing the suits were quick to say they'll forge ahead, regardless of legal interlopers.

"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," said Camilla Taylor, the head lawyer in the case led by Lambda Legal, an LGBT rights group.

In a statement the American Civil Liberties Union of Illinois, which is arguing the other suit, a spokesman said, "[W]e remain focused on winning the freedom to marry for our clients and thousands of other same sex couples in Illinois."