The Chicago Family Law Blog

Alvarez Admits Gay Marriage Ban is Unconstitutional; Parallels CA

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Something odd happened yesterday. Cook County State’s Attorney Anita Alvarez, whose job it is to defend the laws of the State of Illinois, conceded in court documents that the law banning gay marriage was wrong and violated the state constitution’s Equal Protection clause, reports the Chicago Tribune.

“No person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws.”

Many are calling it unprecedented and stating that it is the first time a state has refused to contest a lawsuit questioning the constitutionality of a gay marriage ban.

Did anyone follow the California gay marriage battle over the last few years?

Okay, so it's not a perfect precedent, but it is certainly close. In California, after gay marriage was temporarily legalized, Proposition 8 was passed by voters to ban gay marriage. Shortly thereafter, a lawsuit challenging Proposition 8 was filed.

The state, as is its job, fought the lawsuit ... until it got too expensive. Eventually, the state dropped out. A third party, the proponents of the Proposition, subbed in and continued the fight until the 9th Circuit struck down the law on constitutional grounds.

Compare that with Illinois. A short while ago, civil unions were legalized, while the law continued to prohibit actual gay marriage. Lawsuits, filed last month, challenged the prohibition as unconstitutional. And then a state's official refuses to continue the lawsuit.

To be sure, there are definitely differences between the two. However, it would not be surprising if a third party, such as the Thomas More Society, which opposes same-sex marriage, files a motion to sub into the case on behalf of the existing law and its supporters, much like the Prop 8 folks in California.

Peter Breen, president and chief counsel of the society, described the Alvarez's response as, "an inside job from the beginning, a crass political move to force same-sex marriage on all Illinoisans without providing residents of the other 101 counties an opportunity to be heard."

For those questioning whether Anita Alvarez's move was legitimate in terms of her job and her duties, that is a reasonable thing to ponder. While she does have the responsibility to uphold the state's laws, she also has a responsibility to uphold the state's constitution. If, in fact, the law does violate the state's constitution, the latter always wins.

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