Another Window Opens for Early Marriages in Illinois

A federal judge who ruled in December that the Cook County (Illinois) Clerk could not delay issuing marriage licenses to same-sex couples when one of the intended spouses was critically ill has moved a step further, granting a summary judgment motion requiring the Cook County Clerk to implement the state’s new marriage equality law immediately. Consequently, on February 21 it is possible for same-sex couples to get married in Cook County (Chicago and inner suburbs).

On November 5, 2013, the Illinois legislature gave final approval to Senate Bill 10, which amends the Illinois marriage statute to authorize same-sex couples to marry. Under the Illinois Constitution, a bill passed after May 31 may not go into effect until the following June 1, unless it passes with at least 3/5 of the votes in each house of the legislature. S.B. 10 passed by a majority in each house, but not 3/5. But there were people with serious medical issues who might not make it to June 1 and who desperately wanted to marry their partners. This would have both emotional and practical consequences, especially in terms of inheritance taxes, possible intestacy rights, and benefits eligibility for a surviving spouse under pension plans and public benefit programs.

Lambda Legal and the ACLU, which had been collaborating on marriage equality litigation in the Illinois state courts that was pending when the bill passed, went into federal court in Chicago on behalf of a same-sex couple in that situation, suing to compel the Cook County Clerk to issue a license to this couple, and obtained such an order in November, resulting in a decision published on December 5 by District Judge Thomas M. Durkin (Gray v. Orr, 2013 WL 6355918 [N.D. Ill.]). They filed another case in federal court, this time seeking to expand the relief beyond the original plaintiff couple to all those similarly situated, and won that order on December 10, from Judge Sharon Johnson Coleman (Edwards v. Orr, 2013 WL 6490577 [N.D. Ill.]).

Finally, having been successful in getting an order that the Cook County Clerk set up a procedure to issue licenses to same-sex couples presenting critical medical issues, Lambda Legal and the ACLU went one step further, asking Judge Coleman on December 24 on behalf of a new set of plaintiffs to order the Cook County Clerk to ignore the June 1 starting date and begin granting licenses to qualified same-sex couples immediately. Unlike the prior two orders, which got quick action because the plaintiffs were alleging medical emergencies (and at least one of those who benefited from early access to marriage has passed away already, shortly after marrying), this motion evidently gave the court some pause, since Judge Coleman took until February 21, almost two months, to issue her new Order in Lee v. Orr, 2014 U.S. Dist. LEXIS 21620.

“There is no dispute here that the ban on same-sex marriage violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and infringes on the plaintiffs’ fundamental right to marry,” she wrote, pointing out that Clerk David Orr and the state’s Attorney General, Lisa Madigan, both agree with this conclusion. “Since the parties agree that marriage is a fundamental right available to all individuals and should not be denied,” she continued, “the focus in this case shifts from the ‘we can’t wait’ for terminally ill individuals to ‘why should we wait’ for all gay and lesbian couples that want to marry.” Quoting from Dr. Martin Luther King, JR., she wrote: “The time is always ripe to do right.”

“This Court has no trepidation that marriage is a fundamental right to be equally enjoyed by all individuals of consenting age regardless of their race, religion, or sexual orientation, and the public policy of this State has been duly amended to reflect that position,” wrote Judge Coleman. However, she pointed out, the only defendant in this particular law suit is Cook County Clerk David Orr, so “the complaint affects only one county and there is no opposition.” Even though the court found that the ban on same-sex marriage that exists until June 1 violates the 14th Amendment, “this finding can only apply to Cook County based upon the posture of the lawsuit.”

Finding no reason to delay further, the court declared that the existing statutory provisions banning same-sex marriages are unconstitutional, and ordered Clerk Orr to begin issuing marriage licenses. Having to go to Cook County to get married may present some hardship to people in the southern and central parts of the state, so it will be interesting to see whether those who don’t want to wait until June 1 and don’t care to travel that far will pressure their local county clerks to “break the law” and whether those clerks might comply. Traditionally, the southern part of the state has been the most conservative, so controversy may ensue.

Judge Coleman, formerly an Illinois state appellate judge, was appointed to the federal bench by President Barack Obama and has been serving since her confirmation in 2010.

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