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Religious Tolerance logo

Civil unions and same-sex marriages (SSM) in Illinois.

2012 & 2013: "Darby v. Orr"
lawsuit attempts to legalize SSM

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This topic is a continuation from the previous essay.

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2012-JUL-30: Judge allows the Catholic Conference of Illinois to submit their amicus curiae brief to court:

Judge Sophia Hall of Cook County Circuit Court ruled that the Catholic Conference of bishops could submit a brief stating why they support the state's current marriage law which prohibits marriage by same-sex couples. A Catholic Conference spokesperson said:

"We filed a motion to ask the court if we can file a motion to support the intervention. We will be filing a friend of the court brief in support the state law, which is due Aug. 27."

The Illinois Family Institute, allegedly classified as an anti-gay hate group by the Southern Poverty Law Center also asked for permission to submit its own brief. 1

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2012-AUG-27: Two conservative Christian denominations file Amicus Curiae brief supporting marriage inequality:

The Catholic Conference of Illinois, which is composed of the Roman Catholic bishops in the state, joined with the Lutheran Church-Missouri Synod, a conservative denomination within the Lutheran Church in the U.S. filed a joint brief upholding the existing marriage law and opposing marriage by loving, committed same-sex couples.

The brief starts with a quotation from a 1875 Wisconsin court ruling "Campbell v. Campbell," which states:

"Marriage was before human law, and exists by higher and holier authority -- the Divine Order, which we call the law of nature."

Their brief continues:

"Marriage long has been embraced as the transcendent union between one man and one woman. Originating in natural and sacred laws regarding the complementary nature of men and women, the nurturing of children, and the foundations of a flourishing society, marriage predated both state and federal law. Our State's definition of marriage as the union of one man and one woman -- adopting a societal definition that pre-dates the founding of the Nation -- appropriately reflects the shared ideals commonly understood to define the longstanding institution of marriage. Plaintiffs now challenge this definition, contending that our State's prohibition on same-sex "marriage" (as codified in the Illinois Marriage and Dissolution of Marriage Act ("IMDMA")) violates, inter alia, the due process and equal protection clauses of the Illinois Constitution. Plaintiffs, however, fail to state a constitutional violation.

First, as the definition of marriage as a union between one man and one woman is deeply rooted in the practices, values, and traditions of this State and the United States (not to mention 5,000 years of Western culture), Plaintiffs fail to show that the liberty protections of the Illinois Due Process Clause extend to same-sex marriage.

Second, Plaintiffs do not state a violation of the Illinois Equal Protection Clause because, since its founding, our State has had at least a rational basis for reserving marriage to opposite- sex couples. As this Court is well aware, for the purposes of rational basis review, there merely must be a reasonable relationship between the challenged legislation and a conceivable (even if unarticulated) governmental interest. Here, the State has an unquestionable interest in ensuring that its legal definition of marriage reflect what the People of Illinois actually believe marriage to be. Additionally, the General Assembly could have reasonably decided that adopting the consensus definition of marriage best serves the State's interest in the responsible raising of children produced by opposite-sex unions. The Legislature also could have determined that same-sex marriage would impermissibly threaten religious freedom. The wisdom of these determinations is not at issue, as the Legislature's policy choices, reflecting the will of the People, are entitled to great deference under a rational basis review. Under this standard, the IMDMA must be upheld.

Marriage is a fundamental building block of our society and is at the heart of our cultural, religious and social consensus about how society should be organized. The current law reflects the broad consensus of what marriage is and has been since the Founding. If so important an institution is to be radically redefined in Illinois, then so grave a decision belongs to the People. ..."

"Our country and our State have had a near-unanimous consensus that marriage is the union of one man and one woman. This collective understanding was not the result of legislative pronouncement, but rather emanated from commonly held beliefs regarding the complementary nature of men and women, shared goals regarding the parenting of children, and civic ideals regarding the creation of a thriving society."

They quote two mid-18th century dictionaries that define marriage as:

  • "... that honourable contract that persons of different sexes make with one another," and

  • a "... civil contract, by which a man and a woman are joined together. ..."

"Finally, as Plaintiffs concede, even today, only six states and the District of Columbia permit same-sex couples to marry. (See Lazaro's Compl. 4.) Moreover, in every state where same-sex marriage has been put to referendum, it has been rejected by the People."

This final argument has been weakened by the passage of time. As of 2013-MAY, twelve states and the District of Columbia now have laws achieving marriage equality. However, the laws in three states will only became effective on 2013-JUL-01 and AUG-01.

The brief is well worth reading in full because it gives a very complete presentation of the current conservative defense of marriage inequality on the basis of natural law. One glaring inadequacy is that the brief does not address polygynous marriage relationships and other family types mentioned in the Bible. The record holder for polygyny -- the marriage of one man to multiple wives -- is Solomon who allegedly married 700 women and owned 300 concubines as well.

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2012-SEP-04: Legislators filed brief defending marriage inequality:

Eleven legislators, led by Senator Kirk Dillard (R) and Senator Bill Haine (D), filed an amicus curiae brief defending the constitutionality of the existing marriage law which forbids living, committed same-sex couples from marrying. They asked that the court dismiss the ACLU and Lambda Legal lawsuits. 2

Some of the points made by the amicus curiae:

  • The lawsuit challenges the constitutionality of the Illinois Marriage and Dissolution of Marriage Act because it limits marriage to a union of one man and one woman "... that has universally been accepted in the law of Illinois and her sister States until very recently."

  • The lawsuit interferes with the right of the Legislature to create laws regulating marriage.

  • The lawsuit interferes with the constitutional principle of separation of powers among the legislative, executive and judicial components of government.

  • Quoting People v Kohrig, the Illinois Supreme Court has explained that the judiciary ought not to create rights absent a:

    "textual basis or a clear historical precedent for such a right in the language of the Constitution or the opinions of the Supreme Court. To do so would be to place the court in a position of acting as a super-legislature, nullifying laws it does not like. That is not our proper role in an democratic society."

  • "These petitions to change Illinois marriage law are properly directed to the General Assembly rather than the courts."

  • "The proper role for the court in this case is to allow the normal legislative process to handle any claims for same-sex marriage."

  • Same-sex marriage is a new concept that has only been in place in Massachusetts for 8 years and even less in other states.

    "It is not clear what effect redefining marriage would have on the child-centered purposes of marriage as traditionally understood."

Peter Breen of the Thomas More Society, said:

"We welcome the bipartisan support for Illinois’ marriage law offered by this respected group of legislators. They rightly point out that under our constitutional system, the issue of how the government treats domestic relationships is reserved to the General Assembly." 3

The amicus curiae seems to miss the main point of the lawsuit. The lawsuit is not claiming that the Legislature does not have the authority to pass laws regarding marriage. In fact, the Legislature can pass any law that the legislators wish. Rather the lawsuit is claiming that the existing marriage law is unconstitutional.

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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. Tony Merevick, "Judge OKs Illinois Catholic group’s request for brief in marriage lawsuit," Chicago Phoenix, 2012-JUL-30, at:
  2. Senator Kirk Dillard et al., "Motion for leave to file brief amici curiae..." 2012-SEP-04, at: This is an accursed PDF file.
  3. Robert Boharic, "Legislators Oppose Gay Marriage Lawsuit and Support Traditional Marriage, Scribd, 2012-AUG-31, at:

Copyright © 2013 by Ontario Consultants on Religious Tolerance
Posted: 2012-JUL
Latest update: 2013-SEP-19
Author: B.A. Robinson

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