CHICAGO — A lawsuit challenging Illinois’ ban on marriage equality rights for same-sex couples will now move forward, a Cook County Circuit Court judge ruled Friday.
In her ruling, Judge Sophia Hall denied a request to completely dismiss the lawsuit after hearing oral arguments last month. The 2012 lawsuit, Darby v. Orr, involves 25 same-sex couples from throughout the state who are represented by Lambda Legal and the American Civil Liberties Union of Illinois. These couples can now have their day in court.
However, Hall’s decision to throw out three of five claims marriage equality proponents made in the case left lawyers on both sides claiming victory.
Camilla Taylor, Marriage Project Director at Lambda Legal and a lead attorney for the 25 same-sex couples, applauded the ruling, even though Hall dismissed the suit’s claims that Illinois’ marriage law discriminates based on sex, violates the privacy of same-sex couples and offers a “special benefit” to a particular group over another by only allowing marriage between a man and a woman.
“This is a fantastic day for the 25 couples who are plaintiffs in these two lawsuits and also for gay and lesbian couples and their children around the state,” Taylor said. “The court has allowed this lawsuit to go forward, and specifically, has held that the claims for the violation of the fundamental right to marry and for discrimination based on sexual orientation are proper and will go forward in this case.”
The case that will now go before the court will be based on two remaining claims: That marriage is a fundamental right for all couples under the due process clause of the Illinois Constitution, and two, discriminating against gay and lesbian couples based on their sexual orientation violates the equal protection clause, according to John Knight, director of the LGBT and AIDS Project at the ACLU of Illinois.
“The case will be continuing on a narrower basis than which it was brought,” said Paul Linton, special counsel at The Thomas More Society, a conservative legal action group which represents five county clerks who oppose marriage equality. The clerks intervened in the case after elected officials such as Cook County Clerk David Orr, Cook County State’s Attorney Anita Alvarez and Attorney General Lisa Madigan refused to defend the state law
“Each side won something, so each side has something that we’re happy with and each side has things we would prefer the court going the other way on, obviously,” Linton said. “Three of the claims have been dismissed, two have been allowed. Our view is that ultimately we will prevail with those as well.”
In their arguments last month, lawyers from The Thomas More Society argued the state’s 1996 ban had nothing to do with sexual orientation and that it was not meant to discriminate against gay and lesbian couples, but was put in place to protect the state’s policy from the effects of rulings in other jurisdictions. The lawyers also argued that the U.S. Supreme Court’s decision to strike down Section 3 of the Defense of Marriage Act (DOMA) should not bolster legal challenges to state marriage bans.
Currently, Illinois offers civil unions to same-sex couples.
In light of the ruling, Taylor and other lawyers and advocates at Lambda Legal and the ACLU hope the judge will move quickly on their motion for summary judgement; in other words, their request for a full ruling on the case making marriage equality legal.
“The motion for summary judgement has already been filed by the plaintiffs asking the court to rule quickly on the merits of their claims and we’re hopeful that the court will take it up soon,” Taylor said. “We can get to the merits, finally, of the unconstitutionality of the marriage ban and why it is wrong.”
James Darby and Patrick Bova, a plaintiff couple present in court Friday, said they are encouraged by Hall’s decision and also look forward to a swift ruling in their favor.
“Patrick and I have been together for 50 years,” said James Darby. “I am a veteran. I have served my country. We should have the same rights as everyone else in this country, including to get married in my home state.”
Cook County Clerk David Orr, who is named as a defendant in the suit but refuses to defend the state’s marriage law, said marriage equality proponents overcame a major hurdle with the ruling but that the Illinois General Assembly should not delay on considering pending marriage equality legislation.
“Even though it is Darby versus Orr, I do agree with the plaintiffs,” he said. “I believe the court should act quickly and I believe the legislature should act immediately. I worry that each side is waiting for the other.”
LGBT rights advocates and sponsoring lawmakers hope to pass the legislation in the fall “veto session,” but fixing fiscal issues in the state could push a vote to January.
Hall scheduled a status hearing on the case on Oct. 8.
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