Legal politicking leaves bad taste
Political maneuvering surrounding same-sex marriage litigation is on ugly display.
It should be no surprise that the controversial same-sex marriage lawsuit filed to sidestep the legislative process already has been tainted by political grandstanding.
What is surprising, and disappointing, is that two leading public officials — Attorney General Lisa Madigan and Cook County State's Attorney Anita Alvarez — have turned their backs on their official duties to score political points with a favored constituency. In doing so, these two public officials epitomize the concept of moral cowardice masquerading as moral courage.
This dispute is so convoluted it's hard to know where to begin.
Let's start with the most recent development.
Attorney General Madigan and State's Attorney Alvarez are directed by statute to represent defendants — the State of Illinois and Cook County Circuit Clerk David Orr — in the lawsuit that seeks a judge's order legalizing same-sex marriage.
The lawsuit seeks a court order trumping the Legislature's decision to recognize civil unions but not same-sex marriage.
Madigan and Alvarez indicated last week that they will not carry out their duties and instead concede the lawsuit's claim based on their personal view that the state's position is indefensible.
This abandonment of duty leaves no advocate to defend state law, unless the judge assigned to the case appoints a special counsel. (The judge has no choice but to do so if this lawsuit is to be handled in anything approaching a responsible manner.)
The problem with the Madigan/Alvarez stance is that it's not within their purview, as members of the executive branch of government, to declare a state law unconstitutional. That authority is strictly within the province of the judicial branch of government, and for Madigan and Alvarez to act as they are is a breach of their oath of office.
It would, of course, be extremely naive to ignore the political ramification here.
Both women are ambitious Democrats who can't help but notice that support for same-sex marriage has become a litmus test in the Democratic Party. Their real concern has less to do with constitutional niceties than with appeasing party activists and donors. That's why they are couching their decision as a moral imperative.
It shouldn't be necessary to lecture these two veteran lawyers on the concept of checks and balances and the division of power among the executive, legislative and judicial branches of government. They know it, but have chosen simply not to recognize it in this politically charged case.
All of this compounds the unfortunate development we've previously addressed — the propriety of the courts stepping into a public policy debate that clearly falls within the province of the Legislature and governor — the people's representatives.
Same-sex marriage supporters are hoping that Illinois judges will act as the bare majority on the Iowa Supreme Court did. Four justices in the Hawkeye state ordered gay marriage by fiat, setting off a political and legal war that ended with voters firing three of the justices in the 2010 election.
There is no question that public attitudes toward homosexual marriage have changed dramatically in recent years. Advocates of same-sex marriages have made remarkable progress in promoting their cause. But no one should underestimate the challenge they've undertaken.
At issue is a proposed change in social custom that breaches thousands of years of practice by every society that's ever existed. To claim that this is just another legal dispute or that the U.S. or Illinois Constitution mandates such a dramatic departure from historic practice is a stretch of monumental proportions.
Nonetheless, the same-sex marriage lawsuit seeks to have the courts eviscerate the Legislature's policy-making authority by substituting the judiciary's political preference for those of Gov. Quinn and members of the House and Senate.
Those who support that kind of unilateral decision-making by the courts ought to be careful. After all, if a court majority can make a decision to please one group today, what's to stop another court majority from going a different direction tomorrow?
The debate over same-sex marriage is clearly a political issue on which the U.S. and Illinois Constitution is silent. This lawsuit is an invitation to judicial oligarchy that is not just polarizing, but one that would undermine the role of the courts as neutral arbiters and establish judges' reputations as superlegislators answerable to no one. The decision by Madigan and Alvarez to ignore their clear duty simply compounds the affront to representative government.
The same-sex marriage debate clearly falls within the public policy — not legal — realm where the governor and Legislature — the people's representatives — can balance competing interests and establish a policy satisfactory to most of the public.