Illinois Attorney General Lisa Madigan clarified Tuesday where her office stands on several issues relating to marriage equality there, but she did not answer the ultimate question county clerks face about whether to offer marriage certificates to same-sex couples immediately.
A Feb. 21 federal court ruling granting immediate marriage equality in Cook County, Illinois does not bind other county clerks in the state to issue marriage licenses to same-sex couples, she wrote in a letter to Macon County Clerk Stephen Bean, but the decision could be used to achieve similar rulings if other counties are sued.
Bean asked Madigan whether county clerks outside Cook County should issue marriage licenses to same-sex couples under the ruling. The letter to Bean are the first comments by Madigan on the impact of the ruling outside Cook County.
Madigan made clear her view is that the Cook County ruling in the case of Lee v. Orr does not apply to the state's 101 other counties. "As a general matter, a court decision is not binding on persons who were not parties to the case," she wrote, adding the none of the exceptions to that rule apply to other county clerks here.
At the same time, however, Madigan also stated that additional lawsuits likely would lead to the same result throughout the state, writing, "[W]e expect Lee to be persuasive to other state or federal trial courts addressing the same questions." If such lawsuits come about, she noted, the Attorney General's Office likely would intervene to support the couples — a move it had taken in the Cook County case.
Madigan did not, however, state whether other clerks have the legal authority, under the Cook County ruling, to issue marriage licenses to same-sex couples prior to the June 1 start date of the state's new marriage equality law.
"Even though the ruling in Lee is not binding on you, the protections guaranteed by the Constitution must exist without regard to county lines, and the Lee decision, along with the federal court decisions noted above, should be persuasive as you evaluate whether to issue marriage licenses to same-sex couples," she wrote in the letter.
By not stating whether those "persuasive" decisions constitute a legal basis for granting marriage certificates immediately, Madigan has left the decision in the hands of the "separately elected" county clerks like Bean — who sought her advice on that very question.
Since the Cook County ruling, two county clerks have already decided to issue marriage licenses to same-sex couples and a third plans to do so as soon as late this week.
Champaign County County Clerk Gordy Hulten announced Feb. 26 his office would issue marriage licenses to same-sex couples, and the next day, the office of Grundy County Clerk Lana Phillips issued a marriage license to a same-sex couple — the first and only one so far, Phillips told BuzzFeed.
As for Bean, his decision on issuing marriage licenses to same-sex couples is forthcoming — he plans to sit down with his county state's attorney Wednesday to have another conversation on the matter in light of Madigan's letter.
More than 250 same-sex couples have received marriage licenses in Cook County — which includes Chicago — during the first week after the ruling, Feb. 21 to 28, according to Cook County Clerk David Orr. Of the 258 couples, 31 traveled from other counties.
Update — 9:15 p.m.: Gov. Pat Quinn's office described Madigan's letter as "provid[ing] guidance to every county clerk in Illinois that marriage equality should be the law of Illinois effective immediately."
In the statement, Quinn said:
"Nobody should have to wait for equal rights when it comes to love. I encourage every county clerk in Illinois to quickly follow the Attorney General's guidance. Following this guidance, the Illinois Department of Public Health will now accept all marriage licenses issued by any county clerk in Illinois."
Equality Illinois issued a statement saying that Madigan's statement gives a "green light" for statewide marriage equality.
"We agree with the Attorney General that the recent federal decision knocking down restrictions on marriage equality as unconstitutional should be the determining factor in clerks' decisions to issue the licenses before the June 1 effective date of the Illinois Religious Freedom and Marriage Fairness Act," said Bernard Cherkasov, CEO of Equality Illinois.