Ill. Prosecutors Refuse to Defend Gay Marriage Ban
CHICAGO (AP) - Twenty-five Illinois couples were prepared for a long legal fight when they joined lawsuits challenging the state’s ban on gay marriage. Turns out they won’t get one - at least not from the attorneys who would normally be responsible for defending the state’s laws.
Illinois Attorney General Lisa Madigan and Cook County State’s Attorney Anita Alvarez have refused to defend the 16-year-old ban, which defines marriage as between a man and a woman, saying it violates the state constitution’s equal protection clause.
The decision has raised eyebrows among some legal experts who believe prosecutors are legally bound to defend Illinois law, and sets up a scenario where a judge could quickly strike down the marriage statute. Supporters of the ban say it’s unconscionable that there might be nobody in court to defend it, and some are strategizing over how to intervene.
"I took an oath when I was sworn in to defend the constitution of the state of Illinois and I believe that’s what I’m doing," Alvarez said in an interview with The Associated Press. "I’m not going to defend something I believe is in violation of the constitution."
Madigan, who did not respond to a request for comment, plans to file arguments next week in support of the lawsuits, which could be consolidated into one case.
The decision not to defend a state law is unusual, experts said, but not entirely without precedent. Prosecutors in other states have refused to defend other controversial laws, including in Nebraska, where the attorney general refused to defend that state’s abortion screening law after a judge temporarily blocked it, because he felt it ultimately would be found unconstitutional.
The move, sure to thrust Illinois into the national spotlight as federal and other state courts wrestle with the gay marriage issue, was greeted with enthusiasm by couples involved in the lawsuits.
The Obama administration last year announced it would not defend the federal Defense of Marriage Act, though the U.S. House of Representatives’ Bipartisan Legal Advisory Group took up the defense. A federal appeals court in California recently declined to reconsider its decision to strike down that state’s ban on gay marriage, a case that could end up before the U.S. Supreme Court.
Currently, the District of Columbia and seven states - Connecticut, Iowa, Maryland, Massachusetts, New Hampshire, New York and Vermont - have legalized gay marriage. Voters in Washington state will decide whether to overturn a new law legalizing gay marriage, which was blocked from taking effect after opponents got enough signatures to put a referendum on the ballot.
"I was thrilled and excited," said Liz Matos, 41, who hopes to marry her partner of 15 years, Tanya Lazaro, with whom she has two young daughters. She said they considered entering into a civil union, legalized in Illinois last year, but decided it "didn’t truly represent our relationship and what we mean to each other. We still felt that we deserved more."