DeKalb Co. State's Attorney: 'No defense' for withholding same-sex licenses

SYCAMORE – DeKalb County Clerk Doug Johnson is sticking with his decision not to issue same-sex marriage licenses before June 1 despite DeKalb County State's Attorney Richard Schmack saying his decision wouldn't hold up in court.

"I need a judge to tell me what to do in cases like this," Johnson said. "If I lose, I have guidance from the court, which I think would add validity to the marriage license."

His comments Wednesday come a day after Illinois Attorney General Lisa Madigan encouraged county clerks to issue the licenses immediately.

In a memo Schmack wrote Friday, Schmack advises Johnson his office couldn't defend a lawsuit claiming Johnson violated a same-sex couple's 14th Amendment rights by denying them a marriage license.

"Based on the position of the State of Illinois as advocated by the Illinois Attorney General and the ruling of the Northern District of Illinois, there would be no defense to a legal challenge, on Equal Protection grounds, to continued enforcement of the laws banning same-sex marriage," Schmack wrote. "Moreover, the Constitution of the United States is the supreme Law of the Land, and all public officials, federal, state, and local are required to uphold and enforce it."

Illinois became the 16th state to allow same-sex marriage when Gov. Pat Quinn signed the Religious Freedom and Marriage Act into law last year, but the law wasn't slated to take effect until June 1.

However, Cook and Champaign counties started issuing the licenses once federal Judge Sharon Johnson Coleman determined Illinois’ original ban was unconstitutional in the Lee vs. Orr ruling. The ruling meant Cook County did not have to wait until June 1 to start issuing marriage licenses.

The ruling only applied to Cook County since the case involved Cook County Clerk David Orr, but Madigan told Macon County Clerk Stephen Bean on Tuesday that because current restrictions on gay marriage are unconstitutional, same-sex couples asking for a marriage license in any county can be given one.

“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,” Madigan wrote to Bean.

Her letter also advised county clerks to consult with their state's attorneys, consider federal rulings and the cost and potential litigation if a lawsuit challenges any denial.

Johnson said he has concerns any licenses he issues before June 1 would not be valid because the law specified it would go into effect June 1 and he does not know if the paperwork or software will be different from what he currently has.

“I know people who would love to have the legal right to have a marriage and I would love to do it, but what am I going to give them?” Johnson said. “I don't believe it would be legal. I need to follow the law.”

Quinn issued a response to Madigan's letter saying the Illinois Department of Public Health will now accept all marriage licenses issued by all county clerks in Illinois.

Under current law, the public health department helps ensure that new marriages comply with state laws.