CHICAGO — Despite the passage of marriage equality legislation in the Illinois General Assembly last week, lawyers driving a 2012 legal challenge to the state’s ban on same-sex marriage may continue the case in court in hopes of speeding up the bill’s effective date.
“[The case] is not dead until people can marry,” John Knight, attorney with the American Civil Liberties Union of Illinois told BuzzFeed — a change in course for LGBT advocates who have previously said the case would be “moot” if the marriage bill passed.
“Every day is an injury to our clients. We’re thrilled that the legislature gave us marriage, but they gave us marriage in June of next year,” he said. “So the question is now — what can we do for people now?”
As it currently stands, same-sex couples will be eligible for marriage licenses June 1, 2014 — a concession the bill’s sponsors made in order to pass the bill in the annual “veto session” on Nov. 5. Gov. Pat Quinn plans to sign the bill into law Nov. 20.
Knight and additional attorneys from the ACLU and Lambda Legal represent 25 gay and lesbian couples in, Darby v. Orr, which challenges the state’s 1996 ban on legally recognizing marriages for same-sex couples.
But Peter Breen, Vice President & Senior Counsel at the Thomas More Society, told BuzzFeed there is “no point” in continuing legal action after Quinn signs the bill.
“Pushing moot claims is a waste of tax dollars, whether for the time of the State’s Attorney of Cook County, the Illinois Attorney General, or the time of Judge Hall and her staff,” Breen said. “That’s not even getting into the waste of charitable dollars, whether donated to ACLU, Lambda Legal, or the Thomas More Society.”
The Thomas More Society represents a handful of Illinois county clerks who intervened in the case to defend the Illinois law restricting marriage to only a man a woman. The clerks intervened when Cook County Clerk David Orr, Cook County State’s Attorney Anita Alvarez and Illinois Attorney General Lisa Madigan all refused to defend the ban.
Breen and his staff have not yet heard from plaintiff lawyers about what they intend to do, he said.
On Thursday, Cook County Circuit Court Judge Sophia Hall issued a stay on the case until parties from both sides can discuss how they should proceed. Hall scheduled a hearing for Nov. 14. Knight argues that despite the legislature’s action, the claims originally made in court still exist.
“Our claims are still around — that is about how [the marriage ban] is unconstitutional to deny people the freedom to marry exists today just as it did before the Illinois Legislature passed this bill,” he said. “What we are talking about is marriage for our clients now as opposed to in June.”
In the days after the Illinois General Assembly passed the Religious Freedom and Marriage Fairness Act, speculation has grown among advocates and community members surrounding a potential push to expedite the effective date of the law. Knight agrees there are differing opinions on the matter.
“I think it is pressing for everybody and there is a lot impatience for having to wait,” he said. “Certainly people have different views about how important it is to marry today versus in June. We can understand that for people who are in poor health or for people who are older and at risk of not making it until June are going to feel differently about that.”
One of the plaintiff couples, Patrick Bova, 81, and James Darby, 75, have been together for over 50 years. Darby, a Navy veteran, wants to ensure Bova can be buried next to him at a military cemetery in the Chicago suburbs — a benefit extended only to married couples.
“I am a veteran,” Darby said at a recent court hearing. “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.”
But Knight wouldn’t speculate on details of how the case will proceed — if at all — but said “we are certainly exploring all options.”
Jim Bennett, the Midwest Regional Director of Lambda Legal, told BuzzFeed the option of continuing the case is under consideration, but specifics won’t be available until after the next court hearing.
“We could ask a court to rule that it is unconstitutional to deny us that right now and make a case for an emergency need for action sooner rather than later,” Knight said. “At this point, we agreed to a temporary stay and will be back in court [this week]. At that point, I hope we’ll report our plan for what we can do.”
In September, Cook County Circuit Court Judge Sophia Hall denied the Thomas More Society’s motion to dismiss the case, allowing it to proceed to trial on the claims that the ban violates the equal protection and due process clauses of the Illinois Constitution.
“The plaintiffs got what they wanted through the legislative process, which has always been the appropriate venue for their aims. The case is over,” Breen said. “Some new claim for an ‘emergency need for action’ rings hollow, since the plaintiffs have never requested any sort of interim relief during the year and a half this case has been pending.”
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