License issue up in the air
Jumping the gun may be popular in some quarters, but it's no sure thing.
There's no question that changing attitudes and federal court decisions have ushered in a societal revolution on the marriage front.
Same-sex marriage is a reality in some places, and it seems to be only a matter of time before it is everywhere. But the transition is not necessarily smooth, as events in this state demonstrate.
Under a new law approved by the Illinois General Assembly, men can marry men and women can marry women as of June 1. In Cook County, pursuant to a federal judge's decision, same-sex couples can wed immediately.
In a few other counties, including Champaign and McLean, same-sex couples are being issued marriages licenses by virtue of a decision by the county clerks in those counties. In some other counties, county clerks are not issuing marriage licenses because the legislation has not yet taken effect, and they have been advised by their state's attorneys not to do so.
Who's right? Who's wrong? When, if ever, will those questions be answered?
"In the world of law, the only certainty is uncertainty," said University of Illinois law professor Steve Beckett.
How uncertain? Plenty uncertain, according to Beckett.
He said it's his opinion that Hulten acted appropriately by exercising his discretion as county clerk and deciding to issue marriage licenses to same-sex couples. At the same time, he said, county clerks who are denying marriages licenses to same-sex couples also are doing their jobs.
"I could support (the Vermilion County Clerk's) decision, too. If I was the state's attorney, I could defend either lawsuit," said Beckett.
At this point — with same-sex marriage becoming legal on June 1 — who cares any more about the issue itself? But the legalities remain troublesome.
Cook County Clerk David Orr started issuing marriage licenses to same-sex couples pursuant to a court ruling of a federal judge in the Northern District of Illinois.
Champaign County is located in the Central District of Illinois, meaning that the Northern District ruling has no effect here.
Hulten is relying on a ruling that may offer some legal guidance but has no binding authority. He said he did so to avoid the costs and inconvenience of litigation in the Central District of Illinois. But his rush to jump the June 1 deadline could have a negative impact on those he purports to serve.
"The people who are getting married are at risk of having their marriages declared void," said Beckett.
Why would that be? Because the state law has not yet taken effect, and Hulten has no court-approved legal basis on which to act.
It may well be, as Beckett contends, that Hulten is stuck between a rock and a hard place and that because he could be sued for denying a license, he's forced to make a choice. It could just as easily be an election year in which the politically ambitious Hulten perceives the more popular position to be on the pro-same-sex marriage side. Certainly, he's acting within his authority as clerk, but so far, other clerks have been advised by their state's attorneys to wait until they get a go-ahead from the courts.
Just to be on the safe side, it would be preferable for county clerks outside the Northern District to wait for court authority before issuing licenses to same-sex couples. Court exists to provide guidance on these kinds of difficult questions, and it's dangerous to rely on speculation instead.