SYCAMORE – Darla Cook wants to marry her partner, Jaelyn Paulsen, on March 17.
The DeKalb resident believed her marriage could happen after Illinois Attorney General Lisa Madigan issued a letter Tuesday encouraging county clerks across Illinois to start issuing marriage licenses to same-sex couples immediately.
But unless something changes, Darla and Jaelyn won’t be married before June 1 in DeKalb County.
DeKalb County Clerk and Recorder Doug Johnson will not issue marriage licenses to same-sex couples until June 1 unless a court orders it or the law changes, despite Madigan’s opinion and legal advice from DeKalb County State’s Attorney Richard Schmack. Schmack told Johnson on Friday that refusing to issue marriage licenses to same-sex couples opens him to a lawsuit he can’t win.
“I need a judge to tell me what to do in cases like this,” Johnson said. “If I lose, I have guidance from the court, which I think would add validity to the marriage license.”
In a memo Schmack wrote Friday, he advised Johnson his office couldn’t defend a lawsuit claiming Johnson violated a same-sex couple’s 14th Amendment rights by denying them a marriage license before the state’s same-sex marriage law takes effect June 1.
“... There would be no defense to a legal challenge, on Equal Protection grounds, to continued enforcement of the laws banning same-sex marriage,” Schmack wrote in a memo to Johnson.
Cook and Champaign counties started issuing the licenses once federal Judge Sharon Johnson Coleman determined Illinois’ original ban was unconstitutional in the Lee vs. Orr ruling. Coleman said her decision applied only to Cook County, but officials in Champaign and Grundy counties have decided to follow suit.
The ruling only applied to Cook County, but Madigan told Macon County Clerk Stephen Bean on Tuesday that because current restrictions on gay marriage are unconstitutional, same-sex couples asking for a marriage license in any county can be given one.
“Even though the ruling in Lee is not binding on you, the protections guaranteed by the Constitution must exist without regard to county lines, and the Lee decision along with the federal court decisions noted above, should be persuasive as you evaluate whether to issue marriage licenses to same-sex couples,” Madigan wrote to Bean.
Madigan’s letter also advised county clerks to consult with their state’s attorneys, consider federal rulings and the cost of potential litigation if a lawsuit challenges any denial.
Gov. Pat Quinn issued a response to Madigan’s letter saying the Illinois Department of Public Health will now accept same-sex marriage licenses issued by all county clerks in Illinois.
Despite the state leaders and local legal opinion, Cook and Paulsen will have to go elsewhere if they want to get married March 17, the four-year anniversary of their commitment ceremony. The couple has been together since 2009 and in June 2011 became the first couple to have a civil union license issued in DeKalb County.
“I’m extremely disappointed,” Paulsen said. “There’s no reason for him not to do it.”
Johnson said he has concerns any licenses he issues before June 1 would not be valid because the law specified it would go into effect June 1 and he does not know if the paperwork or software will be different from what he currently has.
“I know people who would love to have the legal right to have a marriage and I would love to do it, but what am I going to give them?” Johnson said. “I don’t believe it would be legal. I need to follow the law.”
Clerk’s offices in Winnebago, McHenry, Carroll, DuPage, Will and others say they will wait until June 1.
While Cook and Paulsen have the option to travel elsewhere or wait until June 1, neither of those are viable for the couple.
“I was born and raised here and I don’t want to go to Cook County to get my marriage license,” Cook said. “We also want to get married on our anniversary, so this is going to cost us another year. I just don’t understand.”
• The Associated Press contributed to this report.