Associated Press had a story Thursday in the Atlanta Journal Constitution about Illinois prosecutors Attorney General Lisa Madigan's and Cook County State's Attorney Anita Alvarez' joint refusal to defend the state's same sex marriage ban.
Thomas More Society's Peter Breen started a back-and-forth between legal experts as to whether it is appropriate for the state's law enforcement officers to determine themselves whether they will or will not defend a law put into place by the legislative and executive branches as was the state's marriage law in 1996:
"You can't just say you feel it's unconstitutional," said Breen. "This ... puts people of the state of Illinois in a difficult place because their elected representatives are not defending their interests. If there is no argument or disagreement, then you'd really have a hollow judgment."
David Erickson, a former prosecutor and state appellate judge who now teaches at IIT Chicago-Kent College of Law, said it also potentially puts a private firm in the position of being demonized for stepping forward to defend a state law. Erickson believes the law is unconstitutional but said Breen has a point.
"Show me where it says any elected official, especially a prosecutor, can say, 'I won't defend law passed by a legislative body that is my coequal,'" Erickson said. "Only one body can say it's unconstitutional and that's the (Illinois) Supreme Court."
But fellow Kent College professor Douglas Godfrey said Alvarez and Madigan have a professional responsibility to ensure claims have merit, whether they're filing a lawsuit or defending one, and "in essence ... said we don't think Illinois' law will stand muster."
Thomas More Society is preparing to ask the Court to allow them to defend on the state's behalf.
