By James B. Kelleher
CHICAGO (Reuters) - A judge ruled on Tuesday that two Illinois counties could defend a state law banning same-sex marriage in a court battle that supporters of gay marriage hope will lead to an Illinois court overturning the law and legalizing gay nuptials.
In 1996 Illinois, like many other states, passed a law that said marriage is only between a man and a woman.
The American Civil Liberties Union and Lambda Legal filed a lawsuit on May 30 against Chicago's Cook County Clerk David Orr after his office cited that 16-year-old law in refusing to marry same-sex couples or recognize out-of-state gay marriages.
They hope state courts will rule that the law is unconstitutional, paving the way for same sex marriage in Illinois.
Several states including Massachusetts and Iowa have legalized same sex marriage through the courts rather than by a vote of legislatures.
A model for Illinois could be Iowa, where in 2009 the state Supreme Court unanimously threw out a state law that limited marriage to a man and a woman. Lawyers from Lambda Legal also argued the Iowa challenge. In the 2010 election, three of the Iowa judges were voted off the bench and critics of Iowa gay marriage legalization hope to recall several more this fall.
In the Illinois case, Attorney General Lisa Madigan and Cook County State's Attorney Anita Alvarez, both Democrats, declined to defend the state law banning same sex marriage.
But two county clerks from more conservative parts of the state, Democrat Christie Webb of Tazewell County and Republican Kerry Hirtzel of Effingham County, asked the court to allow them to defend the state law.
The decision on Tuesday by Cook County Circuit Court Judge Sophia Hall granted a request from the two clerks to intervene in the case.
The next step in the case is a hearing on September 27 on a motion from the two clerks to dismiss the case.
"The battle is joined," said Peter Breen, the executive director of the Thomas More Society, a public interest law firm that opposes same-sex marriage and will help the two county clerks fight the lawsuit. "There will be a defense of the law which is the great news of today."
Camilla Taylor, Lambda Legal's marriage project director, said her group and the ACLU agreed to let the clerks participate in the lawsuit "because we thought it was important that no one be able to argue in the future that the other side didn't have an opportunity to present their best arguments."
Last year, Illinois legalized civil unions for gay and lesbian couples but stopped short of allowing them to marry. Proposals in the state legislature to legalize same sex marriage have stalled.
Lambda Legal's Taylor said her organization had tracked hundreds of same-sex couples who sought to use the civil unions law and found they continued to be discriminated against.
Six states and Washington, D.C. allow same-sex couples to marry. The federal Defense of Marriage Act says marriage is only between a man and a woman but the administration of President Barack Obama has chosen not to defend it.
Washington and Maryland also have passed laws that give marriage rights to gay and lesbian couples -- but those laws are in limbo pending a vote by citizens this fall. Maine voters also will cast ballots on a same sex marriage referendum this fall.
Thirty U.S. states have constitutional bans on same-sex marriage, according to gay rights organization, the Human Rights Campaign.
(Editing by Cynthia Osterman)