Acting on inaction

Circuit Court of Cook County Judge Sophia Hall granted intervenor status to the pro-family Thomas More Society Tuesday to do what Cook County State's Attorney Anita Alvarez and Illinois Attorney General Lisa Madigan won't do: Defend the state's 1996 Marriage and Dissolution of Marriage Act, which reserves marriage for opposite-sex couples.

The Thomas More Society filed the request late Friday on behalf of Effingham County clerk Kerry Hirtzel and Tazewell County clerk Christie Webb. They are intervening in the lawsuit that the American Civil Liberties Union and New York-based Lambda Legal filed last month on behalf of 25 gay and lesbian couples after Cook County officials denied their marriage applications.

Legal observers have suggested Alvarez and Madigan are legally bound to defend state laws, regardless of whether they agree with them, but both have said they will not because they agree with the plaintiffs that the act violates the state constitution's equal protection clause.

Peter Breen, executive director of The Thomas More Society, said Hirtzel, a Republican, and Webb, a Democrat, have an interest in ensuring that the law is applied uniformly across Illinois "because they are the keepers of marriage licenses." Webb said she takes no position on same-sex marriage but wants to know what's legal.

The Society has filed a motion to dismiss the case, according Breen. The two sides will file briefs over the summer and oral arguments will be heard on Sept. 27.

Breen added that this first round is likely to be decided on the motion to dismiss. That is, the issue is purely a legal one. With no facts in dispute to be established, a full trial is unlikely. Appeals, he said, are likely.

At issue is whether the Illinois law limiting marriage to one man and one woman violates the state constitution's equal protection clause-that is, does it unfairly discriminate against certain groups?

Breen's memorandum in support of the motion to dismiss argues, "Properly framed, therefore, the issue before this court is not whether there is a fundamental right to enter into a marriage with the person of one's choice, but whether there is a right to enter into a same-sex marriage."

This would be a new right, he pointed out, adding that nothing in American history or tradition supports such a right, and the 13 federal courts and all but one state court reviewing this narrow issue have acknowledged that defense of marriage laws do not constitute discrimination based on sexual orientation because no one has the right to a same-sex marriage.

One key, Breen said, is whether legislators intended the law to discriminate against a particular group. "To survive the challenge, the law … has to have some rational basis," he said, and defense of marriage laws do. For example, society has an interest in upholding marriage as an ideal because there is considerable evidence that heterosexual marriage is the best context for raising children.

Breen added that he is not commenting on whether same-sex couples can do a good job raising children. "The only thing we have to do is show there is a rational basis for the legislators doing what they did," he said. "As long as there is, [the law] should not be struck down."

The Associated Press contributed to this report.