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Kane County says no to early same-sex marriage licenses

Published: Wednesday, March 5, 2014 11:44 p.m. CDT • Updated: Wednesday, March 5, 2014 11:51 p.m. CDT

GENEVA – Kane County Clerk Jack Cunningham will not be issuing marriage licenses to same-sex couples in advance of the law going into effect June 1, regardless of the urging of Illinois Attorney General Lisa Madigan.

Madigan sent a letter to the clerk of Macon County in Decatur regarding a Feb. 21 U.S. District Court case, Lee vs. Orr, which found that restrictions are unconstitutional, allowing Cook County to issue same-sex marriage licenses before the law officially takes effect.

“Right now, I am governed by the law, and the law says June 1,” Cunningham said. “The court order did not mention Kane County. If I issue licenses before then, it could be dangerous from a legal aspect.”

Cunningham said the Cook County case was an exception, issued because a person was dying.

“Now they’re trying to make the exception the rule,” Cunningham said.

Cunningham said he was relying on a legal opinion from Kane County State’s Attorney Joe McMahon.

“Every law has an effective start date,” McMahon said. “The effective start date is June 1, and neither I nor the attorney general, can advance the effective date or delay that date.”

For comparison, McMahon said the concealed-carry license act became effective Jan. 1.

“I could not delay or advance it, and this is no different,” McMahon said.

The only way this could change would be through a lawsuit or if lawmakers take action, McMahon said, because of the separation of powers.

In her Tuesday letter responding to the Macon County Clerk’s request for guidance, Madigan said that county’s state’s attorney concluded, “It is ultimately your [the clerk’s] decision as to whether or not to proceed immediately with the issuance of marriage licenses to same-sex couples.”

Madigan suggested that same-sex couples ask their county clerks to issue marriage licenses, and if they refuse, they may sue.

“Even though the ruling in Lee is not binding on you, the protections guaranteed by the Constitution must exist without regard to county lines,” Madigan wrote. “There has been a consistent stream of lower federal court decisions declaring restrictions against same-sex marriage unconstitutional.”

Madigan wrote that her office’s position is that current Illinois restrictions against same-sex marriage violate the equal protection rights that belong to all citizens under the U.S. Constitution.

Madigan suggested that same-sex couples in other counties can get a marriage license earlier than June 1, by applying for it in Cook County and be married there.

Records show Cunningham’s office issued 138 civil union licenses in 2011, 46 in 2012, 31 in 2013 and three so far in 2014.

Cunningham said he does not know how many of these were for same-sex couples because that is not a record he keeps.

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