An Illinois judge on Thursday agreed to combine two separate lawsuits brought to challenge the state ban on gay marriage. The two suits brought by the ACLU of Illinois and the gay rights group Lambda Legal, challenge Cook County Clerk David Orr and others for not extending marriage licenses to same-sex partners.
However, the one major issue that is not resolved is who is going to defend the state against the two plaintiffs.
Cook County State's Attorney Anita Alvarez and Illinois Attorney General Lisa Madigan office – both of whom would normally handle such issues – have publicly stated that the state's 16-year-old ban on gay marriage is indeed unconstitutional and that they refuse to defend the measure.
"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."
Legal analysts say the unprecedented move by the two government legal offices is similar to the strategy adopted by President Obama directing the U.S. Department of Justice not to defend the Defense of Marriage Act.
The government's refusal to defend DOMA has even prompted the U.S House of Representatives to retain their own legal counsel. The Bipartisan Legal Advisory Group has asked a judge to hold off on ruling on a pending lawsuit in Connecticut until justices in Massachusetts decide if they are going to rule a separate DOMA issue.
DOMA was enacted and signed by President Bill Clinton in 1996 as a result of Hawaii's consideration of same-sex marriage, which is now legal in six states and the District of Columbia.
The two suits in Illinois claim that Orr and the Cook County Clerk's office violated the rights to due process and equal protection under the Illinois Constitution by refusing to grant marriage licenses to same-sex couples.
"As the defendant, I totally agree with the plaintiffs," Orr told reporters last week when asked to respond to the lawsuits.
The Thomas More Society, a legal group organized to protect life, marriage and religious liberty issues, last week announced it was going to petition the court to allow their attorneys to defend Illinois' marriage laws. However, that petition has yet to be filed.
Peter Breen, executive director and legal counsel for the Thomas More Society, told The Christian Post last week that the state's refusal to defend its own laws is a "slap in the face" on the citizens of Illinois.
"It would be unfortunate if a state court rules that same-sex marriage violates our state's Constitution without a single word being uttered in defense of the issue," said Breen. "That is precisely what could happen unless our legal team is allowed to defend what we believe the majority of Illinois citizens – with the votes of both Republican and Democrat legislators have said – believe and that is marriage is between a man and a woman."
A new Associated Press-GfK survey found that in spite of President Obama's recent announcement in support of same-sex marriage, it did little to move public support in one direction or the other.
The poll found that Democrats and liberals were supportive of the president's position and that conservatives and Republicans were as equally opposed to same-sex marriage. Overall, 42 percent of respondents opposed gay marriage, 40 percent approved of it and 15 percent were neutral on the issue.