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Illinois court refuses to allow anti-gay churches, advocacy group to join lawsuit against state marriage equality ban

Darby/Lazaro Marriage Equality Trials

By Jacob Combs

The Illinois court considering a challenge to the state’s marriage laws by a group of same-sex couples ruled Friday that it would not allow several anti-gay groups to join the case as defendants, according to a press release issued after the order by Lambda Legal, who is representing the couples.  The motion to intervene denied Friday by Judge Sophia Hall was brought by two churches, the Church of Christian Liberty and Grace Gospel Fellowship, and an anti-gay advocacy group called the Illinois Family Institute (IFI).

In her ruling, Judge Hall writes that Illinois courts considering such motions must consider whether “the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant will or may be bound by an order or judgment in the action.”  Specifically, as she writes, the Illinois Supreme Court has held that parties wishing to intervene in litigation must show an interest “greater than that of the general public, so that the party may stand to gain or lose by the direct legal operation and effect of a judgment in the suit.”

In their motion to intervene, the two churches argue that should Illinois’s ban on marriage equality fall, they would be forced to perform marriages for same-sex couples, thereby violating their religious liberty.  The plaintiffs disagreed, arguing that a ruling in their favor would only affect civil marriage in Illinois, and would not force any religious institutions to perform marriages against their will.  As Judge Hall points out, the churches could not point to any section in Illinois’s marriage laws that require religious institutions to perform any specific marriage ceremony and so, as she writes in her decision, an end to the state’s marriage equality ban would in fact do nothing to affect the churches right to deny marriages to same-sex couples.

In addition, the churches argued in their motion that they were concerned they might face anti-discrimination lawsuits under the Illinois Human Rights Act (IHRA) if Illinois’s marriage equality ban were declared unconstitutional.  But Judge Hall agrees with the plaintiffs that these claims are spurious, writing, “the IHRA and IMDMA [Illinois’s marriage laws] are separate and distinct statutes, and a judgment in this case on the IMDMA would not alter the Churches’ obligations under the IHRA.”  (Judge Hall also points out that the churches’ religious freedoms would still be protected under both the Illinois and United States constitutions.)

The Illinois Family Institute, in its motion to intervene, argued that its interest is “greater than the general public” because it was one of the main lobbying forces responsible for enacting Illinois’s marriage equality ban.  But, Judge Hall wrote, the “Court finds that IFI has not established an interest in the case that would warrant permissive intervention…. IFI’s interest in the law as an advocacy group does not rise above that of other members of the public who believe the law should be upheld.”  Judge Hall did note that she would allow both the IFI and the churches to file amicus briefs in support of Illinois’s marriage laws.

To recap briefly: when the Darby and Lazaro lawsuits were filed seeking to strike down Illinois’s marriage ban, the named attorney (Cook County Clerk David Orr) refused to defend the ban, as did the state attorney general and the Cook County attorney.  Two other county clerks (those of Tazewell and Effingham counties) requested to defend the law in Orr’s stead, and were allowed to do so by the court.  With today’s ruling, these two clerks will be the only defendants in the case actually defending the laws in question.


  • 1. davep  |  December 3, 2012 at 8:58 am

    Wow, this is VERY good news.The court just made it very clear – You don't have standing to act as a defendant if you would not be affected by same sex couples gaining access to civil marriage. And that is more than half of our argument won already.

  • 2. Lymis  |  December 3, 2012 at 10:19 am

    Is it actually accurate that the two clerks will be the only defendants? Or just the only one who are actually defending the ban?

    Orr will still be the primary named defendant, right? The other clerks are intervenors? This may end up mattering in the event that someone wants to appeal a pro-equality ruling. An intervenor doesn't automatically have standing to appeal, do they?

  • 3. Steve  |  December 3, 2012 at 10:34 am

    I think clerks are frequently sued in their capacity as enforcers of anti-gay-marriage laws. Because they are the ones refusing to hand over marriage licenses.

  • 4. Lymis  |  December 3, 2012 at 2:33 pm

    I know that. But if Orr and the AG aren't defending the case, then they aren't likely to file an appeal if they lose. This could end up like Prop 8, except the intervenors don't have the sort of standing the ones in California did. My question is whether they will be able to appeal if they lose, or if the case ends there. (Because they are unlikely to win).

  • 5. Mike in Baltimore  |  December 4, 2012 at 3:19 am

    It's in state court in Illinois, so state rules apply.

    And I don't know how Illinois law applies to this type of situation – any attorneys know how Illinois law is worded for such a probable situation? Could the intervenors appeal or act as defendants at a higher Illinois court?

  • 6. grod  |  December 3, 2012 at 12:37 pm

    Jacob, Lymis has a point. Read page one of the judgement – Cook County Clerk is the defendant, which State AG and County Clerks Webb and Hirtzel are intervenors. G

  • 7. Jacob Combs  |  December 3, 2012 at 3:48 pm

    This is true. Updated to clarify.

  • 8. Straight Ally #3008  |  December 3, 2012 at 10:23 am

    In their motion to intervene, the two churches argue that should Illinois’s ban on marriage equality fall, they would be forced to perform marriages for same-sex couples….

    They really lead with their chin, don't they?

  • 9. Lymis  |  December 3, 2012 at 10:31 am

    Just like all the Jewish weddings that Christian churches are required to perform, or the remarriages that the Catholics are forced to officiate…..

    Oh, wait.

  • 10. RAJ  |  December 3, 2012 at 11:03 am

    …or the marriages that Latter-Day Saints have been forced to perform in their Temples and Ward chapels in those States where civil marriage equality is the law (starting with Massachusetts in 2004) — Oh, wait.

  • 11. Josh  |  December 3, 2012 at 4:46 pm

    Exactly, such a lie coming from churches! Apparently they don't follow the thing about not bearing false witness. They don't have to follow that when it comes to gay people I guess. Just disgusting they even think they follow Jesus' example. They must think this lie is ok if they get their way.

    I count four of the following the pro-discrimination side is guilty of.
    1. a lying tongue 2. a heart that devises wicked plans 3. a false witness who breathes out lies 4. one who sows discord among brothers

    —Proverbs 6:16–19 "There are six things that the LORD hates, seven that are an abomination to him: haughty eyes, a lying tongue, and hands that shed innocent blood, a heart that devises wicked plans, feet that make haste to run to evil, a false witness who breathes out lies, and one who sows discord among brothers."

  • 12. IAMreigns  |  January 2, 2013 at 10:26 am

    The Jesus you are trying to refer to is, I believe the same Person that "christians" claim is God and is the Son of the God; God Who never changes…

    Same sex unions are an abomination to God; and that has never changed, however way you spin it. Each person stands or falls before God, and it is sad that the so called churches are not pure and have no spiritual strength to manifest the Truth of God's Word, because of the corruption of their teachings.

    God is God and as anyone who chooses to honor God with all their Heart seeks The Lord, this situation will see His Hand defeat darkness.

  • 13. Bob  |  January 2, 2013 at 12:20 pm

    your talking about Red State Jesus,,,,, we're talking about Blue State Jesus,,,, different people talking,,, same Jesus,,,,

  • 14. Eric  |  January 2, 2013 at 12:34 pm

    If God is unchanging, then there was no need for him to send Jesus to create a new covenant.

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