Illinois Prosecutors Won't Defend Gay Marriage Ban

But some legal experts say prosecutors are legally bound to defend state's law
By Mark Russell,  Newser Staff
Posted Jun 21, 2012 10:00 AM CDT
In this photo taken Friday, May 11, 2012, Cook County States Attorney Anita Alverez walks to a press conference at the Cook County Criminal Courts Building.   (AP Photo/M. Spencer Green)

(Newser) – Illinois is home to a 16-year-ban on gay marriage, and some 25 same-sex couples have been gearing up for a big court fight against it. Problem is, the defense's table is looking pretty empty. The AP reports that the state's attorney general and the Cook County state attorney are both refusing to defend the law defining marriage as between a man and a woman, saying it violates the state constitution's equal protection clause. "I'm not going to defend something I believe is in violation of the constitution," says Anita Alvarez, state attorney for Cook County.

But some legal experts believe prosecutors are legally bound to defend Illinois law, and explain that not doing so sets up a scenario where a judge could quickly strike down the marriage statute. But the AP notes that prosecutors in other states have, on occasion, refused to defend other laws they believed would be found unconstitutional. Alvarez and Lisa Madigan's refusal mirrors the Obama administration's decision last year not to defend the Defense of Marriage Act, believing it too would be unconstitutional.

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