CHICAGO - On Wednesday, May 30, the ACLU and Lambda Legal Defense Fund filed lawsuits against David Orr, the Clerk of Cook County, challenging the Illinois law reserving marriage to opposite-sex couples. In compliance with the Illinois Marriage and Dissolution of Marriage Act, Orr has consistently refused to issue marriage licenses to same-sex couples.
The lawsuits claim that the state marriage law violates the due process, equal protection, privacy and equal rights provisions of the Illinois Constitution (in a parallel move which also seem guaranteed to draw media attention and spark political debate, Illinois Governor Pat Quinn asserted on Monday that he would make homosexual marriage a reality without waiting for the courts to act first).
Peter Breen, executive director and legal counsel for the Chicago-based Thomas More Society, stated that the lawsuits, which claim that the state marriage law violates multiple provisions of the Illinois Constitution, "have no merit."
"There is no right, under the state due process guarantee, to enter into a same-sex marriage, and the reservation of marriage to opposite-sex couples does not violate equal protection principles. To date, the state right of privacy has been limited to protecting personal information and evidence gathering in criminal cases, not personal conduct. And, in any event, the state right of privacy does not require the State of Illinois to give public recognition to a private relationship.
"Finally, as many state and federal courts have acknowledged, the marriage law does not discriminate on the basis of sex because neither sex is allowed to enter into a same-sex marriage," Breen explained.
In the absence of any valid state constitutional claims, advocates of same-sex marriage should pursue their political goals through the legislature. But, as Breen noted, voters in thirty-two States have amended their state constitutions to ban same-sex marriage (or, in the case of Hawaii, to reserve that issue to the legislature, not the judiciary). Most recently, more than 60% of the voters of North Carolina adopted a same-sex marriage ban. A same-sex marriage ban will also appear on the ballot in Minnesota in November.
Breen views the lawsuits as a maneuver whose primary purpose is to excite a political and fundraising base in a heavily contested political cycle.
"We are confident that the Illinois courts will uphold the Illinois marriage law," Breen said. "We expect the State's Attorney and the Attorney General to defend vigorously the constitutionality of the Illinois law on marriage. The Thomas More Society will provide whatever assistance we can to help them in mounting that defense."