What The DOMA Rulings Mean For Illinois

Jun 27, 2013

Gay rights activists hold a press conference before the end of the legislature's spring session, demanding the same sex marriage bill get a vote in the Illinois House.
Credit Amanda Vinicky

Expect a raucous time at this weekend's annual Pride Parade in Chicago.  Gay right activists will celebrate the death of "DOMA," or the Defense of Marriage Act.  Wednesday's Supreme Court ruling declaring the Act unconstitutional is a major victory for advocates, who had a disappointing spring in Illinois.  The House of Representatives adjourned in late May without taking a vote on a measure to legalize gay marriage in the state.   Activists say they're hopeful the federal ruling will put additional pressure on state legislators to pass a law.  For the meantime, figuring out just what the ruling means for same sex couples is tricky.

Like most gay rights activists, Equality Illinois CEO Bernard Cherkasov says he was elated when he first heard the Supreme Court's decision. 

"We broke out in cheers. we had goose bumps.  It was an incredible moment to experience it together."

At least, initially. Ask him about the nuances of what it all means, and Cherkasov backs off some.

CHERKASOV: "Boy, it is bittersweet for us in Illinois."

Cherkasov says while gay and lesbian couples around the U.S. who are legally married will get access to federal protections, because Illinois doesn't have same sex marriage, couples here till can't.

CHERKASOV: "And every day that goes by is another state of two classes of citizens - those citizens who ARE able to get federal recognition and those who can't."

Sounds simple, if you put it like that.  But it's actually a lot more complex. For starters: Illinois DOES allow same-sex couples to enter into civil unions.

A status that gives partners the same STATE benefits given to married couples -- like the right to visit a

"And so the question I've been getting is, will I qualify for federal benefits. And the answer unfortunately is a little bit of 'it depends.'" - Christopher Clark, Senior Attorney with Lambda Legal

partner in the emergency room. It's been that way in Illinois since 2011. But civil unions do NOT give partners access to more than 1100 benefits married couples get from the federal government  - everything from the joint filing of income taxes, to social security disability benefits, to getting notification if a partner serving in the military is killed or wounded in action.

LINTON: "The first question people might have is what is the status of persons in civil unions in Illinois with respect to the federal benefits of marriage. In my judgment, the decision in the DOMA case does not affect them because they're not in a 'marriage' as recognized by state law."

That's Paul Linton, who's an attorney for the Thomas Moore society -- a Catholic legal organization that opposes same-sex marriage.

On that point, at least, LGBT activists are in agreement.

But then there's the issue of same sex couples who wanted more than a civil union so traveled to states like Iowa, New York, or Vermont to get married, and came back to live in Illinois.

Christopher Clark, a senior attorney with the gay rights group Lambda Legal, says couples in that situation have called wanting to know what the rulings mean for them.

CLARK: "And so the questions I've been getting is, will I qualify for federal benefits.  And the answer unfortunately is a little bit of 'it depends.'"

A page on Lambda Legal’ s website's devoted to answering "After DOMA:  What it means for you."

There's a section for federal taxes, student aid, private employment issues, medical leave. One piece of advice key piece of advice to couples: consult an attorney.\

CLARK: "It depends because different federal benefits and programs use different rules for determining who's married."

He says it's classified into two different types of rules:  For some programs, whether a spouse gets a benefit is based on where a couple resides.

CLARK: "So the federal government asks, as you married in the state in which you reside.  And the answer for that would be 'no' for most people who were married elsewhere but now live in Illinois because Illinois is not recognizing their marriage as a marriage."

He says other benefits are determined using a so-called "rule of celebration" -  where the wedding was held.  So if a same-sex couple married in a place where that was legal, but then moved to Illinois, federal benefits will presumably kick in. But Clark - and again, on this point, both sides agree - says right now everyone's in a "wait and see" mode.  He says a lot of it will be up to President Barack Obama's administration to decide. Obama favors gay marriage - so Clark's hopeful for a favorable interpretation.   But it's unclear - Illinois' attorney general's office says it's still analyzing the effect of the ruling.   

The lack of clarity has amped up already intense calls for Illinois to pass a law legalizing same sex marriage.  The measure's sponsor, Rep. Greg Harris, sees it that way too.

HARRIS: "It's just important, now more than ever that we do the right thing, treat all of our families equally, and then move on to be sure that people have decent jobs, decent education for their, decent health care, all the things that are important to all families."

Harris, a Democrat from Chicago, took a lot of heat from gay rights activists for not calling the marriage bill for vote this spring.  The state Senate had passed it back in February. Still, he's non-committal about when he'll try.

HARRIS: "I think right now folks are trying to digest the totality of hundreds of pages of this legal opinion. I think people are beginning to understand how vastly and how quickly our nation has evolved in our understanding of equal treatment under the law on this issue.  So I think there's a lot to take in and then we'll make the right decision going forward."

Whenever he calls it for a vote - when the General Assembly's expected to be back in July, maybe later in the summer, or during the fall veto session - Harris says the Supreme Court ruling will only help his cause. But just as gay-rights activists are redoubling their efforts to get it passed ... opponents are sure to do the same, and they too, are fired up following the court's decision.

Bishop Thomas Paprocki, who heads the Catholic Diocese of Springfield, issued a statement saying that the United States Supreme Court "usurped its legitimate prerogative through a raw exercise of judicial power by giving legal protection to an intrinsic evil." He called the decision "devoid of moral authority."

The judicial branch could again play a role in the state of gay marriage in Illinois.  A court case pending in Cook County is seeking to strike down the state's ban on same-sex marriage.

"And so the questions I've been getting is, will I qualify for federal benefits. And the answer unfortunately is a little bit of 'it depends.'" - Christopher Clark, Senior Attorney with Lambda Legal