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Lake County County Clerk will not issue same-sex marriage licenses early

Published: Friday, March 7, 2014 3:37 p.m. CDT

COUNTY – Same-sex couples wanting a marriage license in Lake County have been calling the county clerk's office since a U.S. District Court judge ruled Feb. 21 that Cook County must issue marriage licenses to same-sex couples before the state law goes into effect this summer.

But couples in Lake County will have to wait until June 1, the effective date of the state law legalizing the practice, said Lake County Clerk Willard R. Helander.

Upon news of the Cook County case, Helander consulted the Lake County State's Attorney office for legal guidance.

The Lake County State's Attorney obtained the judge's opinion in the Cook County case, and county officials found that the ruling did not apply to other counties, she said.

A letter from Attorney General Lisa Madigan's office, shared with county clerks throughout the state and dated March 4, said the decision to issue the licenses early was ultimately up to each county, but that "the protections guaranteed by the Constitution must exist without regard to county lines."

She encouraged clerks to find the court decision "persuasive."

Helander said legally her office does not have the authority to permit same-sex marriages within the county before the state-wide law goes into effect.

"I can't be persuaded to do something because I think it's right, because I don't have the authority to do that," Helander said. "I want to be very careful in any aspect of my job. The legislature is the law-making body and they've told county clerks to start issuing [same-sex marriage licenses] June 1. If the state statute doesn't give you authority, then a judge needs to order you to do it."

Helander said there are also other legal ramifications to consider if the county decided to grant same-sex marriage licenses without a judge's ruling.

"If parties enter into a same-sex marriage prior to June 1, and want those unions dissolved at some later date, what legal rights will both parties have in a court of law?" she said. "Our concern is that one of them could attack the validity of the marriage, arguing that the [marriage] wasn't valid to begin with since the law hadn't taken effect [at the time of the union]."

For example, if both parties choose to dissolve the union, there is a custody battle or even a death of one of the partners.

"Your rights as a surviving spouse could be attacked by another party," she said. "We're not saying theses things will happen, but we don't want to give anyone a basis to try that.

"We don't want to do something that causes problems in the future because we're going beyond our authority on the state statute."

One same-sex couple asked Helander if, like in the Cook County case, they could sue the county in order to be married prior to June 1, she said.

Madigan said in her letter that her office would likely support any suit against a county that denied a same-sex license.

"I told them they can sue, but court cases take a while, and might not be resolved until after June 1," Helander said, adding that the conversation was friendly.

One same-sex couple, married in another state, asked Helander's office if they could be married in Lake County.

"You can't get married to the same person twice, unless you have a dissolution," she said.

After the March 18 elections couples joined in a civil union, regardless of sex, will be mailed a copy of the state statute and be offered the opportunity to convert their civil union into a marriage without any cost for up to 12 months after June 1, she said.

Marriages converted from civil unions will be effective the date of the civil union.

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