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Orr, Alvarez Won’t Fight Suits Challenging Gay Marriage Ban

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Cook County Clerk David Orr and Cook County State's Attorney Anita Alvarez say they agree with two recent lawsuits that the state's ban on gay marriage is unconstitutional. They say they won't defend the law in court, and will concede the state should be required to provide marriage licenses to same-sex couples. (Credit: CBS)

Cook County Clerk David Orr and Cook County State’s Attorney Anita Alvarez say they agree with two recent lawsuits that the state’s ban on gay marriage is unconstitutional. They say they won’t defend the law in court, and will concede the state should be required to provide marriage licenses to same-sex couples. (Credit: CBS)

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CHICAGO (CBS) – Cook County Clerk David Orr and State’s Attorney Anita Alvarez say they agree with a pair of recent lawsuits alleging the state’s ban on same-sex marriages is unconstitutional, and they are not fighting the effort to lift that ban.

Orr’s office is a defendant in two lawsuits filed last month by the Lambda Legal gay rights law firm and the American Civil Liberties Union, claiming the failure of the Clerk’s office to issue marriage licenses to gay couples is a violation of the Illinois Constitution.

The lawsuits were filed by more than two dozen plaintiffs from Chicago, Bloomington and Marion last month.

A 1996 state law allows marriage licenses to be issued only to opposite-sex couples, but the plaintiffs in the lawsuit claim that law violates the equal protection clause of the Illinois Constitution.

Orr said he’ll concede in court that the plaintiffs are correct, instead of fighting to support the law which bars him from issuing same-sex marriage licenses.

“As the defendant, I totally agree with the plaintiffs that the existing law in Illinois, I believe, discriminates,” Orr said. “We are clearly admitting that people are being discriminated against in their desire to … get a marriage license. They can’t. Instead, they get a civil union if they so choose. So, I don’t think it’s particularly unusual, and the best part of our history is where we gradually overcome discriminatory laws, and that’s what I’m hoping to do here.”

LISTEN: WBBM Newsradio’s John Cody reports

Alvarez, who represents the county in legal matters, is backing Orr.

“We do believe that the equal protection clause of the Illinois Constitution protects everyone equally, and the Illinois statues that deny the issuance of marriage licenses for same-sex couples violate the Illinois Constitution,” she said.

Alvarez said she is well within her rights as a state’s attorney to decline to defend the allegations in the lawsuit. She thinks their move is justified.

“We are allowed to do that, because as the lawyer – and looking at this, legally, and looking at the statutes, the way they are written – it’s clear to us, it’s in our legal opinion, that those statues violate the equal protection clause of the Illinois Constitution.”

Alvarez spoke as if she believes the issue will ultimately be decided by the Illinois Supreme Court.

Peter Breen, director of the Thomas More Society – a self-described public interest group that opposes gay marriage – said the group plans file papers to intervene in the case, seeking to force Orr to enforce existing state law.

Breen said Orr and Alvarez are wrong that the state’s marriage law is unconstitutional.

“The statements made today that somehow the equal protection clause of the Illinois Constitution requires the making of same-sex marriages here in Illinois out of whole cloth is false,” he said.

Last year, the state legalized same-sex civil unions, granting many of the same legal rights and responsibilities of marriage, but the measure stopped short of granting full marriage rights for gay couples. The lead plaintiffs, Chicago Police Detective Tanya Lazaro and software analyst Liz Matos, have said they believe the civil unions that became legal in Illinois last year are insufficient for gay couples who wish to marry.

State Rep. Greg Harris (D-Chicago) and two other openly gay state lawmakers have co-sponsored a measure that would legalize same-sex marriage in Illinois, but they have acknowledged there aren’t enough votes yet in the Illinois General Assembly to approve the proposal.

Full same-sex marriage rights are currently available in New Hampshire, Vermont, Massachusetts, Connecticut, New York, Iowa, and the District of Columbia. Laws permitting same-sex marriages are also set to take effect later this year in Washington state, and at the beginning of next year in Maryland.

Last month, Gov. Pat Quinn said he was ready to work toward legalizing gay marriage, shortly after President Barack Obama said he favors same-sex marriages.

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