Counties across Illinois are treating same-sex couples differently, the result of confusion over a court ruling last week that led to same-sex couples being able to marry immediately in Cook County but did not directly apply elsewhere — and state officials’ silence on the legal implications of the Cook County decision.
The lack of statewide guidance on the issue led one county clerk Thursday to seek direction from Attorney General Lisa Madigan. Her office, thus far, has not said whether counties in the state besides Cook County have the authority or are required to begin marrying same-sex couples now, months before the state’s marriage equality law is due to take effect.
Although two counties — Champaign and now McLean — have announced that they are joining Cook County in offering licenses, others have said they will not do so or are waiting for further guidance.
Macon County Clerk Stephen Bean sent a letter to Madigan — the state’s top lawyer — seeking advice on how to lawfully move forward.
After consulting with county attorneys, Macon County officials concluded the ruling appears to be applicable only to Cook County, but Bean is seeking further guidance from Madigan.
“I am hoping you and your office can give the other 101 county clerks in Illinois some guidance over the recent federal court ruling which found the current marriage law unconstitutional,” Bean wrote in the letter, which he provided to BuzzFeed. “Like the Champaign County Clerk, my personal belief is that if the current marriage law is unconstitutional; why not apply it to all 102 counties.”
Madigan Communications Director Natalie Bauer said Madigan’s attorneys are looking into the matter. Madigan intervened in the lawsuit, Lee v. Orr, in support of the plaintiffs in Cook County who successfully sued for the ability to marry before the marriage equality law takes effect.
Bean said he is seeking the guidance because he fears a scenario in which he issues licenses prematurely and peoples’ marriages are invalidated in court. “As much as I’d love to issue them, I don’t want to issue a license and a person find out down the road in litigation that they’re not properly married.”
Despite the lack of guidance from state officials, McLean County will be the third county to begin issuing marriage licenses to same-sex couples.
McLean County Clerk Kathy Michael told BuzzFeed that she plans to begin issuing marriage licenses to same-sex couples as soon as late next week — a decision that comes just a day after Champaign County Clerk Gordy Hulten announced he would, under the court ruling, begin issuing such licenses.
Michael said her county will follow Hulten’s reasoning.
“I got ahold of our state’s attorney over the weekend and spent some time discussing this,” Hulten said. “They agreed with the Champaign state’s attorney’s opinion. But why wait go through [litigation] at the expense of the taxpayers? This will save a lot of people a lot of time and money.”
In his announcement, Hulten said he and his state’s attorneys concluded the Cook County ruling, which found the state’s statutory ban on marriage for same-sex couples violates the 14th Amendment of the U.S. Constitution, should apply to Champaign County.
McLean and Champaign counties share a small border and are located in the central part of the state.
With the decision, Michael acknowledges there are differing opinions among county clerks on how to proceed, “and I think that’s because it’s happening so fast.”
“The only reason it’s taking me a little longer is that we hope to be ready by next week,” she said, explaining marriage license application forms must be updated to serve same-sex couples. “I have to wait because the forms have got to be right. We’re hoping to be ready by Wednesday or Thursday next week, but for sure by the next week.”
As of Monday, other counties, such as McHenry and Kane in the northern part of the state, and Sangamon, which is home to the state’s capitol, said they are not issuing marriage licenses to same-sex couples.