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Same-sex marriages (SSM) in Illinois.

2012: Two lawsuits consolidated into one.
Thomas More Society asks to represent defendant.

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This topic is a continuation from a previous essay

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2012-MAY-30: SSM lawsuit launched (Cont'd):

On JUN-01, the Illinois Attorney General's office filed papers agreeing with the plaintiffs that excluding same-sex couples from marriage is unconstitutional. Subsequently, the Cook County Clerk and States Attorney also agreed that the marriage ban is unconstitutional. 1

The Thomas More Society, is a non-profit, Roman Catholic, "national public interest law firm." Their mission is to "restore respect in law for life, marriage and religious liberty." 2 The society is named after Sir Thomas More (1478-1535) who is known to Roman Catholics as Saint Thomas More. He was Lord Chancellor of England, a strong opponent to the Protestant Reformation, and is regarded by the Catholic Church as the patron saint of statesmen and politicians. 3 Their web site states:

"The complaints both alleged that the Defense of Marriage Act was unconstitutional under the Illinois Constitution, and should therefore be nullified. The lawsuits claim that the state marriage law violates the due process, equal protection, privacy, and equal rights provisions of the Illinois Constitution. The named defendant is David Orr, the Cook County Clerk, who by law, had to refuse to issue same-sex marriage licenses." 4

Peter Breen, executive director of the Thomas More Society disapproved of the two lawsuits. He said:

"Going around the will of the people is not the right way to change an institution that has thousands of years of history and is sound in its reasons for existing." 5

It is important to realize that the plaintiffs do not desire to change the institution of marriage in any way, as far as opposite-sex couples are concerned. They seek only to enlarge the scope of marriage to include same-sex couples.

The logical route for change would be to have the Illinois Legislature modify the state marriage act. However, this option was not open to these same-sex couples at the time that the lawsuits were filed. Essentially all Republican lawmakers at the state and federal level have a track record of opposing marriage equality. Most Democrats vote in favor of equality. The ratio of Republican to Democratic legislators in Illinois at the time made passage of such a bill impossible. Thus, a court challenge to have the marriage act declared unconstitutional was the only path open to civil libertarians and the LGBT community to legalize SSM.

Seeking to have the courts legalize a new type of marriage via the courts is hardly a new idea. Richard and Mildred Loving successfully used this path. They were arrested in Virginia during 1959 for the "crime" of being a married interracial couple. Their lawsuit, ironically called Loving v. Virginia, was settled in 1967 by the U.S. Supreme Court. That decision redefined marriage to include interracial couples throughout the U.S.

David Orr was named as the defendant in the lawsuits in his official capacity as the Cook County Clerk. Ironically, he is personally in favor of SSM. However, he was required by the state DOMA law to refuse marriage licenses to each of the 25 same-sex couples.

A spokesperson for defendant David Orr issued a statement on his behalf, saying:

"The time is long past due for the State of Illinois to allow County Clerks to issue marriage licenses to couples who want to make that commitment, I hope this lawsuit clears the last hurdle to achieving equal marriage rights for all." 5

State Rep. Mike Tryon (R-Crystal Lake) favors no state recognition of loving, committed same-sex couples except as "legal strangers" -- as roommates. He voted against civil unions last year, and is also opposed to SSM this year. He said:

"I firmly believe that a marriage is between a man and a woman, and it should stay that way." 5

If he gave a reason for his belief, it was not mentioned by the reporter.

If the state DOMA law were overturned, and if SSM were legalized, the nature of marriage would actually change very little. Once the initial surge of same-sex couples who have wanted to marry were accommodated, probably in excess of 95% of marriages would continue to involve opposite-sex couples. The only difference would be that an additional few percentage of marriages would be consecrated by loving, committed same-sex couples. They would benefit from the full set of state benefits and protections for themselves and their children -- the same set as has been enjoyed by all married opposite-sex couples and by same-sex couples in civil unions. However, the same-sex married couples would enjoy the right of calling their relationship a marriage, of calling their partner a wife or husband and spouse, and of enjoying the status that accompanies marriage.

At the time that this lawsuit was filed federal DOMA law had already been challenged in various federal courts and had been ruled unconstitutional. 4 One of the lawsuits made it to U.S. Supreme Court, was heard in late 2013-MAR, and the ruling released on 2013-JUN-26. Yhe Court declared Section 3 of the federal DOMA law unconstitutional. After that date, same-sex married couples were no longer excluded from some 1,138 federal programs. they now have the same access to federal support and protection programs as opposite-sex couples have always had. Suddenly, the drive by the LGBT community to achieve marriage equality became more than seeking the status of marriage for loving, committed, same-sex couples. To be able to marry would bring to such couples access to the full range of federal programs and protections.

On MAY-30, in response to the filing of the lawsuit, Governor Quinn's office issued a statement saying simply:

"... the governor supports marriage equality."

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2012-JUN-01: Attorney General decides to not defend DOMA law:

In an unusual move, the Illinois Attorney General's office announced that they would not defend the state DOMA law. Instead, they filed supporting replies to the Plaintiff's complaints which supported the Lambda Legal and ACLU lawsuits.

In the Attorney General's place were five Illinois county clerks from Putnam, Crawford, Clay, Tazewell, and Effingham County. 

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2012-JUN-23: Judge agreed to combine two marriage equality lawsuits:

Judge Sophia Hall of the Cook County Circuit Court agreed to consolidate the two lawsuit: one brought by the American Civil Liberties Union of Illinois, and the other brought by Lambda Legal. Both seek to have SSM legalized in Illinois by a court decision. The continuing lawsuit is referred to as Darby v. Orr. 6

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2012-JUN-29: Thomas More Society files a motion to intervene in support of marriage inequality:

Under normal circumstances, Cook County State's Attorney Anita Alvarez and Illinois Attorney General Lisa Madigan would defend challenges to Illinois laws. However, both have publicly refused to defend the marriage law that bans same-sex marriage. They stated that the ban is unconstitutional. State's Attorney Anita Alvarez said earlier in June:

"I took an oath when I was sworn in to defend the Constitution of the state of Illinois and I believe that's what I'm doing. I'm not going to defend something I believe is in violation of the Constitution."

Reacting to the state's refusal to defend the law, the Thomas More Society decided to apply for the role. They are a legal defense group whose philosophy closely follows that of the Roman Catholic Church. That Church has taken an active role promoting marriage inequality in every state where SSM has been promoted. Illinois is no exception.

Peter Breen, the Society's executive director and legal counsel said:

"It would be unfortunate if a state court rules that same-sex marriage violates our state's Constitution without a single word being uttered in defense of the issue. That is precisely what could happen unless our legal team is allowed to defend what we believe the majority of Illinois citizens -– with the votes of both Republican and Democrat legislators have said -– believe and that is marriage is between a man and a woman." 6

One month earlier, Peter Breen had criticized the lawsuits, saying:

"Going around the will of the people is not the right way to change an institution that has thousands of years of history and is sound in its reasons for existing." 5

The "will of the people" as evidenced by public opinion polls seems to indicate that Peter Breen is in error. In reality, a majority of Illinois adults support marriage equality:

  • A 2010 poll by Paul Simon Public Policy Institute at Southern Illinois University showed that same-sex marriages and civil unions were supported equally by registered voters.
  • Since 2011, national polls have regularly shown that a plurality -- and later a majority -- of adults favor allowing same-sex couples to marry.
  • A 2012 poll by Paul Simon Public Policy Institute showed that same-sex marriage was preferred over civil unions by 44% to 32%.

The Society stated that they:

"... filed a motion to intervene in the same-sex marriage case, on behalf the Tazewell County Clerk and Effingham County Clerk who have appointed the Thomas More Society as Special Assistant State’s Attorneys to defend this law. 4

Their motion asked that the Court:

"... entertain the Verified Petition of said proposed Interveners herein ... on an emergency basis, given the exigent and indeed unique circumstances surrounding this litigation as well as the surpassing importance, and that, therefore, the Court set a briefing schedule on said proposed Interveners' Petition for Leave to Intervene as of Right, or in the Alternative, for Leave to Intervene by Permission. ... none of the parties now before this Court appear to be willing to defend the claims at bar. ... given the surpassing importance of the issues before this Court, the need for someone to mount a defense in opposition to plaintiffs' claims, and the need for proposed Interveners to present their claims for intervention as soon as possible, they respectfully submit that the Court should entertain their Verified Petition for Leave to Intervene, etc. as an emergency matter. ..." 7

Their motion was granted. The lawsuit proceeds.

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The attempt to legalize same-sex marriage
via the state courts continues in the next essay.

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "Illinois Senate passes marriage bill," Lambda Legal, 2013-FEB-14, at: http://www.lambdalegal.org
  2. Brochure, Thomas More Society, Current as of 2012-AUG-30, at: https://www.thomasmoresociety.org/
  3. "Thomas More," Wikipedia, as on 2012-NOV-02, at: http://en.wikipedia.org/
  4. "Thomas More Society defends marriage in Illinois," Thomas More Society, 2012-JUN, at: https://www.thomasmoresociety.org/cases/
  5. Sophia Tareen, "Illinois Gay Marriage: Lawsuits Filed By ACLU, Lambda Legal Aims For Marriage Equality," Huffington Post, 2012-MAY-30, at: http://www.huffingtonpost.com/
  6. Paul Stanley, "Judge Agrees to Combine Same-Sex Marriage Lawsuits in Illinois," Christian Post, 2012-JUN-23, at: http://www.christianpost.com/
  7. Text of the emergency motion, Circuit Court of Cook County, Illinois, undated, at: https://www.thomasmoresociety.org/

Copyright © 2012 & 2013 by Ontario Consultants on Religious Tolerance
Posted: 2012-JUN
Latest update: 2013-MAY-17
Author: B.A. Robinson

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