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Posts Tagged ‘Illinois same-sex marriage’

Another Window Opens for Early Marriages in Illinois

Posted on: February 21st, 2014 by Art Leonard No Comments

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.

Illinois Lesbian Couple Wins Order Directing Clerk to Issue Marriage License

Posted on: November 26th, 2013 by Art Leonard No Comments

Yesterday afternoon U.S. District Judge Thomas M. Durkin signed a temporary restraining order and permanent injunction directing Cook County Clerk David Orr to issue a marriage license to Vernita Gray and Patricia Ewert.  Gray v. Orr, Case No. 1:13-cv-8449 (Nov. 25, 2013).    The marriage equality bill signed into law last week by Governor Patrick Quinn does not go into effect until June 1, 2014, but that may be too late for Gray and Ewert, who have been a couple for five years and desperately want to marry, because Gray is suffering from advanced breast cancer and may not make it that long.  Judge Durkin published an opinion to accompany his order on December 5; see Gray v. Orr, 2013 Westlaw 6355918 (N.D. Ill.).

The women filed suit on November 22, contending that the existing Illinois law banning same-sex marriages deprives them of due process and equal protection in violation of the 14th Amendment, echoing the existing marriage equality lawsuits on file with the Cook County Circuit Court.  Those cases, in which motions to dismiss were previously denied, are being held in abeyance pending the June 1 effective date of the new marriage equality law.

Plaintiffs filed their motion for immediate relief on Friday, Nov. 22, and the court accommodated them with a nearing on the motion on Monday, November 25.  In their motion papers, the plaintiffs explained why they could not wait until June 1.  “Unfortunately, Vernita may pass away in the near future.  Unless this Court acts, Vernita and Pat will be permanently denied the benefits, both tangible and dignitary, of legal marriage.  For example, unless Plaintiffs are allowed to legally marry, they may face discrimination in hospital settings, an estate tax burden, and other harms, including challenges establishing eligibility for social security benefits as a surviving spouse.  Given Vernita’s extensive medical expenses, the additional cost of being denied access to legal marriage is particularly burdensome.”

The complaint pointed out that no adequate remedy in money damages exists for the deprivation of the status of marriage, and that no harm would be done to the state of Illinois by granting them immediate relief.  Indeed, the Illinois state government has now decided as a matter of public policy that same-sex couples should be entitled to marry.  The effective date of the marriage law was dictated by the timing of the votes in the two houses of the legislature.  Since the Senate bill was passed last May, it could not be enacted by the House during the fall “veto session” without a super-majority unless the effective date was no earlier than June 1.  The bill won a majority, but not a supermajority.  Illinois constitutional requirements would be preempted by federal constitutional requirements, however.  In effect, the plaintiffs argued, they have a federal constitutional right to marry, and any state rule that makes that impossible — even for just seven months — would be inflicting an irreparable injury on them due to Vernita’s medical condition.

Judge Durkin was persuaded by this argument and signed the Order presented by counsel for the plaintiffs, amending it however to be effective until December 9, 2013.   Although Durkin did not issue a written explanation of his Order, merely signing the one-page Order proffered by counsel, his agreement to sign the Order implicitly signaled his finding that plaintiffs were likely to prevail on the merits of their claim to a federal constitutional right under the 14th Amendment to marry.

Cook County Clerk David Orr promptly indicated that his office would issue a license as soon as they received a duly executed application.  Orr, who is a named defendant in the pending state court lawsuits, is not defending the marriage ban on the merits; neither is the Attorney General, Lisa Madigan, who agrees that same-sex couples have a right to marry.  Defense of the existing marriage ban in the state court lawsuit was left to county clerks from outside the Chicago area, who intervened as defendants represented by a Catholic litigation group, the Thomas More Society.

A large legal team assembled to represent the plaintiffs, including groups of attorneys from Kirkland & Ellis LLP and  Miller Shakman & Beem LLP, staff attorneys from Lambda Legal’s Chicago office, and attorneys for the Roger Baldwin Foundation of ACLU, Inc., in Chicago.