Thomas More Society won’t call for lesbian judge’s recusal in marriage case

Photo: Victor Powell

The Thomas More Society, a Chicago-based conservative legal action group, said it has no plans to ask the presiding judge to recuse herself in the trial of the major lawsuit challenging Illinois’s ban on same-sex marriage because she is an out lesbian.

“We don’t plan on pursuing that,” said Peter Breen, executive director at the Thomas More Society. The organization represents two downstate county clerks who were approved to intervene in the case on behalf of the ban after county and state officials, including plaintiff Cook County Clerk David Orr, said they will not defend it in court.

In May, two separate lawsuits were filed on behalf of 25 same-sex couples by the ACLU of Illinois and Lambda Legal against Orr, when they were denied marriage licenses earlier this year. Attorney General Lisa Madigan and Cook County State’s Attorney Anita Alvarez also pledged not to defend the law. The lawsuits have since been combined into a single suit.

“We’ve really been focused on pursuing our legal arguments. That’s really where we are,” Breen said, referring to the group’s motion to dismiss the lawsuit entirely.

Last week opponents not involved in the lawsuit made headlines when they said that Cook County Circuit Court Judge Sophia Hall should remove herself from the case because she could present a conflict of interest as a lesbian.

Rena Lindevaldsen, associate dean of academic affairs and professor of law at Liberty University in Lynchburg, Va., contends that Hall could be biased when deciding the constitutionality of the state’s marriage statute, which defines marriage as a union between one man and one woman. Liberty is a Christian faith university. The same sentiments were shouted by Americans for the Truth About Homosexuality, a Southern Poverty Law Center-classified anti-gay hate group led by Peter LaBarbera.

“Part of the canon of judicial conduct is to avoid bias,” Lindevaldsen told Chicago Phoenix. “She is very outspoken for LGBT rights — and you can be — it would make sense to preserve judicial integrity for her to step away from the case.”

Hall is a charter member of the Alliance of Illinois Judges, an LGBT group that acts as a resource for other judges. Part of AIJ’s mission statement says its goal is to “…promote and encourage respect and unbiased treatment for Lesbian, Gay, Bisexual, and Transgender (LGBT) individuals as they relate to the judiciary, the legal profession and the administration of justice.”

One of Hall’s first rulings as judge in the case allowed the Thomas More Society and the downstate clerks to intervene. On Monday, she approved the Catholic Conference of Illinois’s request to file a brief in the case as a friend of the court.

Lindevaldsen cites Rule 63 – Canon C of the Illinois Code of Judicial Conduct, which states “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned…” such as where “…the judge knows that he or she, individually or as a fiduciary, or the judge’s spouse, parent or child wherever residing, or any other member of the judge’s family residing in the judge’s household, has an economic interest in the subject matter in controversy or in a party to the proceeding, or has any other more than de minimis interest that could be substantially affected by the proceeding…”

On the topic of the United States Supreme Court’s recent decision to uphold the Affordable Care Act, Lindevaldsen acknowledged that despite being appointed by a Republican president and personal conservative viewpoints, Chief Justice John Roberts was able to rule fairly in the decision, ultimately swinging the majority to uphold the law. When asked if Hall could similarly demonstrate objectivity, Lindevaldsen said, “I’m not saying that she can’t rule fairly. I obviously don’t know how she will rule.”

At TMS, Breen reiterated distance from the claims.

“We have not reviewed that and at this point, we’re not focused on that at all,” he said. “We think we’ve got good legal arguments, and I can’t speak for anyone else.”

As part of the legal team representing the 25 gay and lesbian couples in the suit, Lambda Legal’s Camilla Taylor dismissed the demands for Hall’s recusal, saying that a judge’s sexual orientation is not a reason for recusal from a lawsuit that concerns discrimination against gay people.

“For instance, a female judge has no duty to recuse herself from a case involving workplace sex discrimination, a divorced judge can preside over a divorce, and an African American judge can hear a race-based discrimination case,” Taylor said. “Judges take an oath to interpret the law and rule impartially, and the notion that a judge can’t be trusted to be impartial in a marriage discrimination case simply because she’s a lesbian is insulting to our courts, to our system of justice, and, frankly, to our intelligence.”

Rep. Greg Harris (D-Chicago), who spearheaded the state’s successful civil unions law to passage, wondered where such claims would end.

“Our justice system has for centuries sided with fairness and equal treatment for all and somehow gays must be different,” Harris said. “These people should be ashamed of themselves.”

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