Last year, 16 same-sex couples filed a lawsuit against Cook County Cook Clerk David Orr, charging that his office’s refusal to grant them marriage licenses was a violation of the Illinois Constitution -- specifically, it’s guarantee of equal protection and due process.
In the case of Darby v. Orr, as it came to be known, the defendant has refused to defend himself. Now, he’s arguing against a motion to dismiss the case, which was filed by Tazewell County Clerk Christie Webb and Effingham County Clerk Kerry Hitzel, who oppose same-sex marriage. (Attorney General Lisa Madigan and Cook County State's Attorney Anita Alvarez also support the lawsuit, which was filed in Cook County Circuit Court by Lambda Legal, a homosexual rights legal team.)
Orr’s office released a letter on the case today. And don’t worry, it’s not an April Fools’ joke. Orr has been one of Chicago’s most progressive politicians for over 30 years. As alderman of the 49th Ward, he was one of Mayor Harold Washington’s few white allies on the City Council. In his capacity as vice mayor, he briefly replaced Washington after his death, and presided over the process that chose Eugene Sawyer as mayor.
Lawyers for Cook County Clerk David Orr have filed a brief opposing the motion to dismiss a lawsuit to overturn Illinois' ban on gay marriage. The motion to dismiss had been filed by intervenors Webb and Hitzel, downstate county clerks who are opposed to same-sex marriage.
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Despite being the original defendant in the suit, Darby v. Orr, in his brief Clerk Orr agrees with the plaintiffs that Illinois' marriage ban unconstitutionally denies to persons in same-sex relationships equal protection of the laws.
"We have had to deny this equal protection to thousands of committed couples in Cook County alone," said Orr. "My office has issued 2,897 civil union licenses to same-sex couples since June 2011. I think it's fair to say these couples would prefer marriage licenses and the legal rights they afford along with the equality they represent."
Orr's brief says, "The promise of equality has been the cornerstone of the American government, from the Declaration of Independence's pronouncement that 'all men are created equal,' to President Abraham Lincoln's restatement of the promise in his Gettysburg Address..." and notes that the marriage ban denies equal application of the legal right to marry on account of sex.
"Over the years, we have fought to narrow the gap between discrimination and equal rights, first with the Cook County Domestic Partnership Registry, next with gender-blind Civil Unions. But these were never permanent solutions," Orr said, restating his position when Darby v. Orr was filed on May 30, 2012. "Marriage Equality is long overdue in Illinois and I look forward to issuing marriage licenses without regard to gender."
Orr has been a career-long proponent of equal rights for the gay and lesbian community, and was inducted into the City of Chicago's Gay and Lesbian Hall of Fame in November, 2012.
While there are two gay marriage cases before the United States Supreme Court, findings for the plaintiff in those cases may not diminish the importance of Darby v. Orr. If the court finds for the plaintiff only in the challenge to the Defense of Marriage Act (DOMA) individual state laws will still determine whether or not same-sex marriage is permitted. Under those circumstances, the Illinois General Assembly must pass legislation to allow gay marriage, or the plaintiffs must prevail in Darby v. Orr.
Like Darby v. Orr, the case to overturn the California proposition banning same-sex marriage is based on equal protection. The California case is based on the equal protection clause of the U.S. Constitution, and Darby v. Orr is based on the Illinois constitution, which has a broader equal protection standard than federal law.
