Illinois Gay Marriage Ban Challenge Allowed to Go Forward

Twenty-five same-sex couples challenging statutes that keep them from being married in Illinois can go ahead with their lawsuits, a state court judge ruled.

Cook County Circuit Judge Sophia Hall, rejecting a bid by gay marriage opponents to have the case dismissed, said the plaintiffs had presented legal issues that warrant further consideration. While she tossed some of the couples’ claims, the remainder can proceed, she ruled today in Chicago.

“The court finds that the marriage ban is not facially neutral,” Hall said in her decision. “The present case allows the Illinois courts to consider, for the first time, whether the concept of choice as an aspect of the fundamental right to marry” might apply to same-sex couples.

Twenty-three of the same-sex couples want to get married in Illinois and two seek the state’s recognition of their marriages in Canada. They sued to invalidate parts of the Illinois Marriage and Dissolution of Marriage Act, which they claim were enacted with discriminatory intent and are unconstitutional.

“This is a fantastic day for the 25 couples who are plaintiffs in these two lawsuits and also for lesbian and gay couples and their children around the state,” Camilla Taylor, one of the lead plaintiffs’ lawyers on the case, told reporters after the decision was handed down.

Five Clerks

Clerks who are responsible for issuing marriage licenses in five counties had asked Hall to throw out the cases filed last year by the American Civil Liberties Union and the gay rights advocacy group Lambda Legal. The clerks, all from outside the Chicago metropolitan area, intervened when Cook County Clerk David Orr and state Attorney General Lisa Madigan, a Democrat, declined to defend statutes.

Hall agreed to dismiss the plaintiffs’ claims that the laws discriminate on the basis of gender and violate privacy rights. She let the couples press ahead with claims that the laws denied them their rights to due process and violated their right to equal protection by allowing discrimination on the basis of sexual orientation.

The parties are due back in court on Oct. 8 to set a schedule on how the case will proceed.

“We’re confident that ultimately our laws will be upheld on marriage,” the clerks’ attorney, Paul Linton, told reporters after the judge announced her ruling.

Challenged Provisions

Of the two challenged provisions, one says a marriage between a man and a woman, “solemnized and registered” as provided by the law, is valid in the state, while the other, adopted in 1996, expressly prohibits “a marriage between two individuals of the same sex.”

“The state DOMA passed with overwhelming support” in the Illinois Legislature, defense attorney Linton, of the Chicago-based Thomas More Society, told Hall in Aug. 6 arguments, borrowing terminology from the federal Defense of Marriage Act.

The group is a nonprofit public-interest law firm “that exists to restore respect in law for life, marriage and religious liberty,” according to its website.

“Plaintiffs have tried to attribute evil motives to the general assembly,” Linton said in the hearing. “They’ve failed.”

The purpose of the law was to promote the rational objectives of “responsible procreation” and the ideal of having children raised by their biological parents, he said.

Linton also argued the law falls squarely within a state’s regulatory right as recognized by the U.S. Supreme Court in its June 26 decision invalidating part of the federal DOMA defining marriage as between one man and one woman.

“They get the law wrong,” Lambda Legal lawyer Camilla Taylor countered. “They reject the notion there is a fundamental right to marry the person of their choice.”

The cases are Darby v. Orr, 12CH19718, and Lazaro v. Orr, 12CH,19719, Cook County, Illinois, Circuit Court, Chancery Division (Chicago).

To contact the reporter on this story: {Andrew Harris} in the Chicago federal courthouse at

aharris16@bloomberg.net

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net

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