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Religious Tolerance logo

Same-sex marriages (SSMs) in Illinois.

2013: "Darby v. Orr" lawsuit to legalize
continues to proceed at a snail's pace

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This topic is a continuation from the previous essay.

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2013-FEB-13: Judge denies request by the Thomas More Society:

The Thomas More Society requested that the ACLU and Lambda Legal marriage equality lawsuits be delayed until after the U.S. Supreme Court rules on the two marriage equality cases currently before it:

  • Hollingsworth v. Perry (formerly Perry v. Schwarzenegger): This is the California lawsuit challenging the constitutionality of Proposition 8. In 2008-NOV, Prop 8 temporarily terminated same-sex marriage in California by a voter referendum.

  • Windsor v. U.S.: This is the New York State lawsuit challenging the constitutionality of the federal Defense of Marriage Act (DOMA). That law prevents the federal government from recognizing same-sex marriages legally consecrated in the District of Columbia or in any of the states that have legalized SSM (as of 2013-FEB).

A Cook County judge denied the Thomas More Society's request to delay the two cases. Tom Brejcha of the Society said that they were not displeased with the ruling, and are looking forwards to a new ruling on their request to have the case dismissed. 1

And so, by 2013-FEB, there are three paths being actively pursued to attain marriage equality in Illinois:

  • Through the Legislature where the Senate has passed a marriage equality bill, the Governor has committed to sign it, and the bill is expected to eventually be voted upon by the House, probably in the 2013-FALL.

  • Through the federal court system where the Supreme Court could conceivably legalize same-sex marriage across the country as in 1967 when they legalized interracial marriage. The chance of such an incredibly broad ruling was quite small, and did not happen.

  • Through the Illinois court system where the ACLU and Lambda Legal lawsuit, based on the Illinois Constitution, are underway.

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2013-MAR-31: Legislature fails to act:

The drive towards marriage equality in the Illinois legislature ground to a halt. The Religious Freedom and Marriage Fairness Act had been successfully passed by a Senate Committee, the full Senate and a House committee. However, it appears that there were not quite enough votes to pass the bill in the full House. Thus. Rep. Harris, the sponsor of the bill in the House did not call the bill for a vote. The legislative session ended on 2013-MAY-31 without the bill receiving the final vote. It will probably be reactivated in the 2013-FALL session.

Jim Bennett, Director of the Midwest Regional Office of Lambda Legal wrote:¬

"This is a stunning failure in the Illinois House. This is too important to families across Illinois. ... Lambda Legal‚€™s lawsuit,¬ Darby v. Orr¬ which was filed a year ago yesterday will move forward. The day is coming when Illinois will have the freedom to marry. Lambda Legal has been working in the Midwest for the respect of our relationships for 20 years and we won‚€™t stop until same-sex couples in Illinois are treated with dignity and respect."

The lawsuit, which has made little or no progress since 2013-FEB, will proceed, probably continuing at a snail's pace.

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2013-JUL: Twenty-five couples file a motion to accellerate an existing lawsuit seeking marriage equality:

During early 2012, civil unions were legalized in Illinois in order to give loving, committed same-sex couples access to the state's benefits that had been restricted to married couples without allowing them to call their relationship a marriage. At the time, same-sex couples were prohibited under the federal DOMA law from receiving any federal marriage benefits.

On 2013-JUN-26, the U.S. Supreme Court ruled in the case Windsor v. United States that Section 3 of the federal Defense of Marriage Act (DOMA) was unconstitutional. This means that same-sex married couples in the U.S. and their children suddenly became elibible for 1,138 federal protections and benefits on a par with opposite-sex married couples. These federal programs are not available to those same-sex couples in the U.S. who have only been permitted to enter civil unions.

Same-sex couples in Illinois are in this predicament. Lack of equal treatment under federal law has greatly intensified the pressure for marriage equality in Illinois and across the U.S. Meanwhile, in most states, loving committed same-sex couples are considered "legal strangers" -- as mere roommates. Their relationships are not recognized and they do not have access to federal programs.

According to the John More Society which serves as Special Assistant State‚€™s Attorneys representing the defendants in the Darby v. Orr case:

"On JUL-10, 2013, the plaintiffs filed a 750 page motion for summary judgement.

On July 15, 2913, the plaintiffs petitioned the Court to compel the Thomas More Society to produce discovery. ... Judge Sophia Hall consented to the request and ordered the Society produce discovery by August 23, 2013."

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2013-SEP: Current status of the drive to have SSMs legalized through the courts:

Twenty-five couples had attempted to obtain a marriage license during 2012 from David Orr, the Cook County clerk. They were refused licenses and filed two lawsuits: Darby v. Orr and Lazario v. Orr. Thse lawsuits were subsequent consolidated into a single action, Darby v. Orr. Subsequently, both Illinois Attorney General Lisa Madigan and Cook County State's Attorney Anita Alvarez refused to defend the Illinois marriage act that bans same-sex marriage. They claimed that the marriage law clearly violates the Illinois Constitution's equal protection clause. Both took an oath to defend the state Constitution, and thus could not honorably defend an unconstitutional law. In their place, five Illinois county clerks were allowed to defend the law in state court.

The Huffington Post reported that:

"Lambda Legal and the American Civil Liberties Union of Illinois filed a motion for summary judgment in Cook County Circuit Court. They said Judge Sophia Hall could rule on the motion as soon as Aug. 6, when oral arguments are scheduled on a defense motion to dismiss the lawsuit.

'We will say that we should win as a matter of law' under the state constitution, said Camilla Taylor, Lambda Legal's marriage project director. 'Illinois[' unconstitutional marriage law] now is the only thing standing between these families and numerous federal rights.' 2

It is generally acknowledged that there are 1,138 federal benefits and protections that opposite-sex married couple and their children can access, but that same-sex couples must be married in order the couples and their children to access.

Oral arguments were scheduled for 2013-AUG-06 to allow the defendents -- the five county clerks -- to support their request to have the lawsuit dismissed. 3

On 2013-SEP-16, the National Organization for Marriage (NOM) -- whose sole function is to work against marriage for same-sex couples across the U.S. -- announced that a special session of the Illinois Legislature is scheduled for late october and early November to discuss and presumably vote on the marriage equality bill. If the bill is signed into law, the case in the state courts will presumably be cancelled.

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More developments are expected, unless the House passes the SSM bill first.

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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. "Judge won't delay lawsuit over gay marriage ban,", 2013-FEB-13, at:
  2. "Defending Marriage in Illinois," Thomas More Society, undated, at:
  3. Tammy Webber, "Couples Seek Ruling In Case On Heels Of SCOTUS Decision," Huffington Post, 2013-JUL-10, at:
  4. Brian Brown, "Illinois Marriage Alert," National Organization for Marriage, 2013-SEP-19, at:

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

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