State of the State: Same-Sex Marriage Cases Are Moving Through the Courts

Feb 1, 2013

Jamey Dunn
Credit 2014 / WUIS/Illinois Issues
During the legislature’s lame-duck session in January, an Illinois Senate committee approved a proposal to legalize same-sex marriage, but it lacked the support to pass in the full Senate. Similar legislation was not called for a vote in the House. Just days later, at the beginning of the new legislative session, Sen. Heather Steans and Rep. Greg Harris introduced new bills in their respective chambers to end the ban on same-sex marriage. 

Harris told Illinois Issues after the bill was introduced: “I think you’ve seen in the last couple weeks [that] from every corner of the state, there is support in favor of equal marriage. ... Treating people equally in the eyes of the law is the right thing to do.”

As Steans and Harris lobby their peers for votes, separate legal battles continue that could clear the way for same-sex marriage in Illinois and possibly across the nation. 

Almost a year after civil unions became legal in Illinois, two civil rights groups in the state filed suits challenging an Illinois law that defines marriage as being between a man and a woman. Since the American Civil Liberties Union of Illinois and the gay rights group Lambda Legal filed the suits, which represent more than 20 couples from across the state, the two cases have been combined into one legal challenge. 

The suit claims that same-sex couples are not being offered equal protection under the law. “Civil unions do not satisfy Illinois’ guarantee of equality because they single out a group of people, treat them differently under the law and deny them the fundamental right to marry,” says Christopher Clark, senior staff attorney in Lambda Legal’s Midwest Regional Office, which is based in Chicago. “We are taking this case to court because in our democracy, it is the job of our courts to uphold the Constitution and protect individual freedom.”

James Darby, the lead plaintiff in the case, and Patrick Bova have been together for 48 years. The two live together in Chicago and say they want to get married so as they age, each will have the secure legal protection of a spouse. “By excluding them from marriage, and relegating them to civil unions, our government has marked them as different and worth less than other Illinois families — and that is exactly how others treat them,” Camilla Taylor, National Marriage Project director for Lambda Legal, says of all the couples represented in the case. “They have suffered disrespect in schools, workplaces, hospitals and in their every-day interactions with government for long enough.”

Cook County State’s Attorney Anita Alvarez and Illinois Attorney General Lisa Madigan have both said they agree with the suits and would not defend the law that bars gay and lesbian couples from getting married. “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,” Alvarez told the Associated Press. “I’m not going to defend something I believe is in violation of the Constitution.” 

Cook County Clerk David Orr, the defendant in the suit, also says he agrees with the plaintiffs. Orr is the defendant because he denied marriage licenses to same-sex couples in accordance with Illinois law. “The time is long past due for the state of Illinois to allow county clerks to issue marriage license to couples who want to make their commitment. I hope these lawsuits are the last hurdle to achieving equal marriage rights for all,” Orr said in a prepared statement. 

A group of downstate county clerks were granted the right to intervene on behalf of Orr and defend the state’s ban on same-sex marriage. The Thomas More Society, a conservative legal organization, represents them. Peter Breen, executive director and legal counsel of the Thomas More Society, says the legal claims in the suit “have no merit.” The group’s lawyers have asked a Cook County judge to dismiss the case. “True equality comes from each citizen’s vote being equally valued and the legislative process being respected, not circumvented, by those who wish to subvert the will of the people,” Breen says. 

The Illinois Family Institute also made a bid to intervene in the case against county clerks. However, the court ruled that the group could not take part. 

The federal government has taken a similar path as Illinois officials in response to a challenge of the Defense of Marriage Act, which bars the federal government from recognizing same-sex marriages and civil unions. 

The U.S. Department of Justice is not defending DOMA before the U.S. Supreme Court at President Barack Obama’s behest. A U.S. House panel called the Bipartisan Legal Advisory Group will take up defense of the law, with Paul Clement, who served as solicitor general under former President George W. Bush, at the helm. 

Edith Windsor and her partner, Thea Spyer, were married in Canada after being together for 42 years. When Spyer died in 2009, Windsor had to pay $363,053 in federal estate taxes because DOMA barred the Internal Revenue Service from recognizing their marriage. Windsor sued to get the money back. If she wins, the federal government would likely only recognize same-sex marriages in states where they are legal. 

DOMA also allows states the option of not recognizing same-sex marriages and civil unions, but that is not the section of the law being challenged. DOMA passed after some in Congress became worried that state courts or legislatures would legalize same-sex marriage. It was written in a way that would allow states to do so, but it was intended to keep the legal recognition from spreading across the country under the “full faith and credit” clause of the U.S. Constitution. That clause requires states to recognize legal contracts from other states.

“Contrary to the wishes of a number of my Republican colleagues, I crafted the legislation so it wasn’t a hammer the federal government could use to force states to recognize only unions between a man and a woman. Congress deliberately chose not to establish a single, nationwide definition of marriage,” former U.S. Rep. Bob Barr, who sponsored DOMA, wrote in a 2009 opinion piece for the Los Angeles Times. “The first part of DOMA, then, is a partial bow to principles of federalism, protecting the power of each state to determine its definition of marriage. The second part sets a legal definition of marriage only for purposes of federal law, but not for the states. That was the theory.”

In the piece, Barr, who was the Libertarian Party candidate for president in 2008, advocates getting rid of DOMA because he says it is too limiting for states that choose to recognize same-sex relationships. “DOMA’s language reflects one-way federalism: It protects only those states that don’t want to accept a same-sex marriage granted by another state. Moreover, the heterosexual definition of marriage for purposes of federal laws — including immigration, Social Security survivor rights and veteran’s benefits — has become a de facto club used to limit, if not thwart, the ability of a state to choose to recognize same-sex unions.” 

Former President Bill Clinton, who signed DOMA in 1996, has since revised his opinion on the legislation and same-sex marriage. “I have long opposed governmental recognition of same-gender marriages, and this legislation is consistent with that position,” Clinton said in 1996.

Clinton reversed his stance in 2009 on same-sex marriage and in 2011, he joined the campaign to legalize same-sex marriage in New York. 

The Obama administration has yet to take a position on a broader case before the Supreme Court that could legalize same-sex marriage nationwide. Hollingsworth v. Perry raises the question of whether same-sex couples have a right to marry under the U.S. Constitution. Kris Perry and Sandy Stier got married in 2004, when the city of San Francisco was granting marriage licenses to gay and lesbian couples, but soon afterward, a judge ruled that the city did not have the right to grant the licenses. The couple got their now-void license back in the mail along with the fee they paid.

“It’s demoralizing in a way that I think few people can understand,” Perry told WBEZ, a Chicago public radio station. The California Supreme Court overturned the state’s ban on gay marriage, but the passage of Proposition 8 put the ban back in place. The couple did not try to get married again before Proposition 8 took effect. “We’d had the experience in 2004. It was very hard [on the couple’s four sons]. It was hard on us,” Perry says. “We had that feeling of ‘Oh no, not again.’” Instead, they later opted to sue to have the ban overturned. 

The Supreme Court’s ruling has several potential outcomes: It could strike down all bans on same-sex marriage as unconstitutional; it could issue a narrow ruling that applies only to California; or it could uphold the ban.

The state opted not to defend Proposition 8, and the California Supreme Court decided that proponents of Proposition 8 had the right to intervene and defend it. The U.S. Supreme Court, however, may not agree and could send the case back to a lower court to start over again. 

“There could be a 50-state decision, a nine-state decision, a one-state decision, a no-state decision,” Perry says of both cases before the court. But whatever the outcome, Perry says she already sees a victory. “Even if we aren’t so fortunate to be successful at the Supreme Court level, it’s pretty true at this point that we have won in the court of public opinion.”

Perry has an interesting team of lawyers on her side. David Boies, who represented former Vice President Al Gore in his challenge of the Florida recount in the 2000 presidential race, and Ted Olsen, who successfully represented Bush, have teamed up to mount the challenge against Proposition 8. 

Olsen, who served in the administrations of Bush and former President Ronald Reagan, wrote an opinion piece for the Daily Beast in response to criticism from some of his fellow Republicans. “Americans who believe in the words of the Declaration of Independence, in Lincoln’s Gettysburg Address, in the 14th Amendment and in the Constitution’s guarantees of equal protection and equal dignity before the law cannot sit by while this wrong continues. This is not a conservative or liberal issue; it is an American one, and it is time that we, as Americans, embraced it.”

The U.S. Supreme Court is scheduled to hear arguments on both cases in late March.

Illinois Issues, February 2013