Downstate clerks want to defend gay marriage ban

Two county clerks from downstate Illinois have asked a judge for permission to do what Cook County State’s Attorney Anita Alvarez and Illinois Attorney General Lisa Madigan won’t: defend the state’s gay marriage ban.

The Thomas More Society late Friday filed a request on behalf of Effingham County Clerk Kerry Hirtzel and Tazewell County Clerk Christie Webb, seeking to intervene in the lawsuit filed in Cook County by 25 gay and lesbian couples. Alvarez and Madigan have said they won’t defend the 16-year-old ban, which defines marriage as between a man and a woman, because they believe it violates the state constitution’s equal protection clause.

Peter Breen, executive director of The Thomas More Society, a public-interest law firm that opposes gay marriage, said Hirtzel and Webb have an interest in ensuring that the law is applied uniformly across Illinois “because they are the keepers of marriage licenses.”

“If the judge lets us in, we believe we have very good arguments to prevail because of the large body of case law that goes our way on it,” said Breen, whose firm sought out clients to intervene in the suit. “We had notified clerks that we believe they have ... a strong interest in intervening.”

Hirtzel, a Republican, was out of the office Monday and not available for comment, his office said. Webb, a Democrat, did not immediately return a phone message seeking comment.

The American Civil Liberties Union and New York-based Lambda Legal originally filed separate lawsuits against Cook County Clerk David Orr, a supporter of gay marriage whose office is responsible for issuing marriage licenses in Chicago and the rest of the county. The lawsuits recently were consolidated.

The action was taken on behalf of the 25 couples, some of them from outside Cook County, but all of whom had applied for marriage licenses there and been denied. Alvarez said it’s her job to represent Orr — and they both agreed with the plaintiffs.

The decision has raised eyebrows among some legal experts who believe prosecutors are legally bound to defend Illinois law — though others say the prosecutors were within their rights to refuse to defend the suit — and sets up a scenario where a judge could quickly strike down the marriage statute.

Breen said he wanted to get into court quickly “to put a halt to any sort of effort to have the case dismissed,” by the plaintiffs and defendants who agree with each other.